Gibney v. St. Louis Transit Co.

Citation103 S.W. 43,204 Mo. 704
PartiesGIBNEY v. ST. LOUIS TRANSIT CO.
Decision Date11 June 1907
CourtUnited States State Supreme Court of Missouri

In an action against a street railway company for personal injuries, a juror on his voir dire testified that he had no business relations with or interest in the defendant company, and that he had no bias or prejudice against the parties, or either of them. It afterwards appeared that the juror had been an employé of defendant company, who had gone on a strike, which had continued for several months, during which feeling ran high and defendant's tracks were demolished by dynamite. A motion for a new trial was made on that ground, and on the hearing the juror was offered as a witness for plaintiff. He did not admit that he was one of the strikers, nor did he deny the charge made against him, but repeated that he had no prejudice either way. It was shown by affidavits that he was one of the leaders in the strike. An unusually large verdict was returned by the jury. Held, that a new trial should have been granted.

3. DAMAGES—GROUNDS—EXPENSES—NURSING BY FAMILY.

In an action for personal injuries, where plaintiff was nursed only by members of her family, and there was no express contract to pay them, expenses incurred for nursing was not a proper element of damages.

4. SAME — CARRIERS — PERSONAL INJURIES — DAMAGES—EXCESSIVE DAMAGES.

In an action by a passenger for personal injuries, the testimony of plaintiff showed that she was 52 years of age, and had been in perfect health prior to the accident, and was earning from $30 to $40 per week, and that she had suffered a great deal of pain in her back, dizziness in her head, numbness in her limbs, and severe pains in her hips and legs; that she could get around the room with great difficulty; that she was unable to work or take care of herself, and was as helpless as a child; that she had paid $10 to a physician for consultation and $35 to a masseuse, but two larger doctor bills had not been paid. A physician testified that she showed evidence of traumatic neurasthenia and appeared to be losing strength. He diagnosed the case as traumatic or railroad spine. Another physician, a specialist, treated plaintiff for about 10 months. He found her condition a nervous one, with symptoms of concussion of the spine. He considered plaintiff an invalid who would never permanently recover. Another physician testified that she was suffering from neurasthenia or nervous exhaustion; that she had suffered a great deal of pain, but presented no evidence of any organic disease. He could not state whether the condition was permanent or temporary. Defendant's surgeon, who treated plaintiff for about two weeks immediately after the accident, testified that a week or ten days later, he went to see her, saw her sitting by the window, but, after being admitted to the house, found that she had gone upstairs and had gotten into bed with her clothes and shoes on. A physician appointed by the court to examine plaintiff did so in the presence of her physician. In his opinion she had no permanent injuries. He was a specialist in neurosis. Held, that a verdict of $30,000 was excessive.

Appeal from Circuit Court, Montgomery County; Elliott M. Hughes, Judge.

Action by E. A. Gibney against the St. Louis Transit Company. From a judgment for plaintiff, and an order refusing a new trial, defendant appeals. Reversed and remanded.

Boyle & Priest and Edward T. Miller, for appellant. A. R. Taylor, for respondent.

BURGESS, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff on the 13th day of June, 1902, by being thrown from defendant's car by reason of its premature start whilst plaintiff was in the act of alighting therefrom at the corner of Taylor and Washington avenues, in the city of St. Louis. The action was instituted in the circuit court of the city of St. Louis, and afterwards, on the 18th day of April, 1903, on application of plaintiff for a change of venue, the cause was transferred to the circuit court of Montgomery county, where plaintiff, upon trial, had recovered a verdict and judgment for the sum of $30,000. Defendant filed motion for new trial, and afterwards, and within four days after the rendition of the verdict, filed a supplemental motion for a new trial, and also motion in arrest of judgment, which motions were by the court overruled, and defendant appealed.

The petition is in the usual form of an action by an injured passenger against a carrier, and charged, in substance: That the defendant at the times alleged was a corporation by virtue of the law of Missouri, and used and operated the railway and car mentioned for the purpose of carrying passengers for hire from one point to another in the city of St. Louis as a street railway company. "That on the 13th day of June, 1902, the defendant, by its servants in charge of its car, received the plaintiff as a passenger thereon, and for a valuable consideration by the plaintiff paid to the defendant undertook and agreed with the plaintiff to carry her safely as a passenger on said car to her point of destination on defendant's line, and to then stop said car, to wit, Washington Boulevard (or avenue) and Taylor avenue, in the City of St. Louis, and allow plaintiff a reasonable time and opportunity to alight in safety. Avers that the defendant, unmindful of its undertaking and of its duty in the premises, did, by its servants in charge of said car, whilst it was stopped at the plaintiff's said point of destination to enable passengers, including the plaintiff, to alight from said car, and whilst the plaintiff was in the act of alighting from said car, and before she had a reasonable time or opportunity to do so, negligently caused and suffered said car to be started in motion, whereby the plaintiff was thrown and caused to fall from said car to the street, and to be thereby permanently injured upon the spine, chest, and body, and also to sustain a great and permanent injury to the nervous system, and also to be injured internally." The petition then sets up an ordinance of the city of St. Louis prohibiting conductors from allowing women to enter or leave cars whilst in motion, and a disregard of this ordinance, and claimed that such violation of this ordinance contributed to cause plaintiff's injuries, and alleges her injuries as follows: "That by her injuries, caused as aforesaid, the plaintiff has suffered and will suffer great pain of body and mind; has been permanently crippled; has been permanently disabled from carrying on her business as a keeper of boarders, and carrying on business as a saleswoman and other business, and has been permanently disabled from labor; has been made an invalid for life; has incurred and will incur large expenses for medicines, medical and surgical attention, and nursing—to her damage in the sum of $50,000, for which sum she prays judgment." The answer was a general denial and a plea of contributory negligence on the part of the plaintiff in alighting from a moving car at a time and place when and where the same had not been stopped for the purpose of permitting passengers to alight therefrom. The reply was a general denial.

Upon almost every salient fact in evidence in this case the testimony on behalf of the opposing parties is in direct conflict. Plaintiff's evidence tended to prove that she was 52 years of age, had lived in St. Louis about 12 years, and that her health had been perfect prior to the accident. She was connected with a medical firm, and traveled, lectured, and sold a certain proprietary medicine, call "Granagophone," for women only. Her earnings from this employment averaged $30 or $40 per week. She also kept boarders; but there is no evidence as to the earnings or profits she derived from such business. At about 8 o'clock on the evening of June 13, 1902, at Spring and Olive streets, in the city of St. Louis, plaintiff, accompanied by her daughter Marguerite, boarded one of defendant's cars whose course was west on Olive street and north on Taylor avenue. The car had seats running crosswise from side to side, and a step or running board along the side of the car from end to end, for the use of passengers in boarding the car or alighting therefrom. At the end of each seat was an upright standard, in which was an electric button, by means of which passengers indicated to the conductor their desire to have the car stopped. Plaintiff boarded the car at the right side, and sat at the end of the third or fourth seat from the front, being thus close to the running board and on the east side of the car as it was going north on Taylor avenue. Just before reaching Washington Boulevard she rang the bell twice for the car to stop, whereupon her daughter asker her why she rang it the second time, and she replied: "The conductor is doubly warned that we want to get off." When the car stopped she got up from the seat, stepped on the running board preparatory to alighting, and while in that position the car started, throwing her to the street and into the gutter by the pavement. Plaintiff's description of the accident was substantially corroborated by the testimony of her daughter Marguerite, who sat beside her on the car, and also by the testimony of witnesses Finnegan and Stone, passengers thereon. It further appears from their testimony that plaintiff fell about 2 feet from the curbing on the east side of the street, and remained there until she received assistance; that five or six passengers...

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