Flaherty v. St. Louis Transit Co.
| Decision Date | 27 November 1907 |
| Citation | 106 S.W. 15,207 Mo. 318 |
| Parties | KATE FLAHERTY v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. John W McElhinney, Judge.
Affirmed.
Glendy B. Arnold for appellant; Boyle & Priest of counsel.
(1) The court erred in giving plaintiff's first instruction because the instruction assumes that plaintiff was in a position of danger at the time the car is alleged to have been set in motion, when, under the pleadings and proof, that was a disputed and a contested fact. Instructions should not assume controverted facts. Maxwell v. Railroad, 85 Mo. 105; Koenig v. Railroad, 173 Mo. 722; Siegrist v. Arnot, 10 Mo.App. 206. (2) The first instruction is also erroneous because, in authorizing a verdict for plaintiff, it fails to require the jury to find that the car had stopped to receive her as a passenger and was standing still at the time she got aboard same, and contrary to the petition, authorized a verdict for plaintiff merely upon a finding that there were jerks or shocks in the motion of the car as it rounded the curve. Instructions purporting to cover the whole case should not ignore important issues raised by the pleadings and evidence. Sawyer v. Railroad, 37 Mo. 241; Sullivan v. Railroad, 88 Mo. 182; Thomas v. Babb, 45 Mo. 386. (3) Plaintiff's twelfth instruction is erroneous because it authorizes a recovery for any expenses incurred by plaintiff for nursing, while the evidence shows that no such liability was incurred by plaintiff. Gibney v. Railroad, 103 S.W. 48. (4) The court erred in refusing defendant's requested instruction 17. (5) The verdict is the result of passion and prejudice and against the overwhelming preponderance of the evidence. Spohn v. Railroad, 87 Mo. 74; Gibney v. Railroad, 103 S.W. 48; Spiro v. Railroad, 102 Mo.App. 263. (6) Plaintiff's twelfth instruction is erroneous because it does not limit the amount which plaintiff was entitled to recover on account of expenses incurred for medicines, medical and surgical attention and nursing, as all of these expenditures were definitely fixed in her evidence. Smoot v. Kansas City, 194 Mo. 522.
A. R. Taylor and Albert E. Hausman for respondent.
(1) Instructions which are good as far as they go, but do not cover the entire case, amount in civil cases only to non-direction and not to error, and it is the duty of the other party to ask proper instructions to supply the shortcomings of those asked by his adversary. Bank v. Ragsdale, 171 Mo. 186; Drey v. Doyle, 99 Mo. 465; Cornwell v. Railroad, 106 Mo.App. 135, 174 Mo. 444; Railroad v. Randolph T. Company, 103 Mo. 468; Montgomery v. Railroad, 181 Mo. 477; Hall v. Hall, 107 Mo. 101; Wheeler v. Bowles, 163 Mo. 398; 11 Ency. Pl. and Pr., pp. 217 to 224 and note; 2 Thompson on Trials, pp. 1693, 1697. (2) Plaintiff's instruction 1 does not assume that plaintiff was in a position of danger at the time the car was set in motion, but submits that fact to the jury to be found from the evidence. (3) Plaintiff's instruction 12 correctly authorized a recovery for expenses incurred by plaintiff for nursing, for the evidence shows that she was nursed for five days at St. John's Hospital, by a Miss Agnes Kennedy, and that she was nursed at her sister's home for four months by her sister, of whose family she was not a member. The mere fact that plaintiff was nursed by her sister would not raise a presumption that the sister was performing those services without expectation of compensation unless it were further found that plaintiff and her sister lived together in a family relation, as members of the same household. Callahan v. Riggin, 43 Mo.App. 137; Moore v. Renick, 95 Mo.App. 208; Lillard v. Wilson, 178 Mo. 157. The Gibney case, cited for appellant, was where daughters living with the mother nursed her. (4) Plaintiff's 12th instruction is not erroneous for plaintiff was not required to state the amount recoverable under each head of damage unless her petition set forth the amount asked under each head of damage. The petition in this case does not set out the amount asked under each head, but asks a general verdict. Wheeler v. Bowles, 163 Mo. 398; Browning v. Railroad, 124 Mo. 55; Mirrielees v. Railroad, 163 Mo. 483; Gorman v. Railroad, 113 Mo. 408.
Plaintiff had judgment, nisi, for $ 7,500, in an action for negligence. From that judgment, the defendant appeals here.
The petition charges and the proof shows that defendant, on the 12th day of June, 1904, was a corporation operating a railroad and the cars running thereon to Creve Coeur Lake in St. Louis county. It is further charged, as follows:
That "whilst defendant's inbound car was stopped at said place to receive passengers therein, the plaintiff was by defendant's servants in charge of said car received as a passenger thereon, and whilst she was on the run-board or step of said car, and whilst she was stepping from said run-board or step of said car, up and into said car, to a seat on said car or a place to ride in security on said car as a passenger, and before she had a reasonable time or opportunity to reach a seat or place to ride in security on said car, defendant's servants in charge of said car negligently caused and suffered said car to start and move forward and to sustain a severe shock, whereby plaintiff was thrown from her said position on said car to the ground, and her left foot was thereby thrown under the wheels of said car and so badly mangled as to require amputation of all the foot except the heel. Plaintiff was thereby otherwise injured both externally and internally.
"That by her injuries so sustained plaintiff has suffered and will suffer great pain of body and mind; has been and will be permanently disabled from labor, and has lost and will lose the earnings of her labor, and has incurred and will incur large expenses for medicines and for medical and surgical attention and nursing; and has been permanently maimed and rendered a cripple for life, to her damage in the sum of twenty-five thousand dollars, for which sum she prays judgment."
The answer was a general denial, and, further, "that plaintiff's alleged injuries were caused by her own negligence directly contributing thereto, in attempting to board a moving car, before same had come to a stop for the purpose of receiving passengers."
The uncontradicted testimony tends to show that defendant's railroad runs from the city of St. Louis to Creve Coeur Lake, some distance in the country, via Delmar Garden; that there was an aggregation of socalled fetching allurements there, besides a possible pleasing prospect of land and water, to-wit, a scenic railroad or "switch-back," popcorn and peanut stands, etc.; that at the entrance of said switch-back defendant's track makes a loop which outgoing cars pass around, and, when turned towards the town, become incoming cars. As we grasp it, the place for receiving and discharging passengers is at a platform after the cars have passed around this loop. There is evidence indicating this was a Sunday evening and so many as two or three thousand people were at Creve Coeur Lake for an outing. Plaintiff, an unmarried woman, in good health, was a domestic in the service of Mrs. Shannon at a weekly wage of $ 5. Late in the afternoon, at about 4 p. m., a Mrs. From, Mrs. Shannon and Miss Flaherty boarded one of defendant's cars and rode to Creve Coeur Lake. They remained there until about 9 p. m. The evening was fine and the locus in quo well lighted. So, too, there is no dispute as to the character of the injuries received by plaintiff. In that regard, the record shows she proved the allegations of her petition. She was permanently injured; her left leg, the injured one, is two inches shorter than the other, and her foot was amputated at the heel -- the lower extremity of the tibia and fibula and calcaneum (heel bone) being sawed off. Her doctor's bill is $ 500. She was bed-ridden for several months, and is confessedly bound for expenses for medicines. Having remained for a few days at St. John's Hospital, she was taken to the home of a married sister, and there nursed day and night while helplessly bed-ridden. At St. John's she was attended by one of the nurses employed there. There is no testimony she was nursed at her sister's home by anyone, save her sister, or members of her sister's family. There is no testimony she had been a member of that family; to the contrary, she was thirty-three years old and living out at service earning her own living. In connection with her nursing, she offered to prove and did prove (without objection from defendant) that reasonable pay for a nurse rendering similar day and night service was $ 5 per day. But plaintiff tendered no proof of an express contract of pay. So, too, it was shown by all the testimony that these three ladies undertook to board one of defendant's return cars to go home. The car was an open summer car with a canvas roof, known as a moonlight car. It was about forty-seven feet long, its seats ran crosswise and would accommodate, say, ninety-six passengers. Along one side of it there was a "run-board" or "running board," about 19 inches above the rail. This run-board from end to end was the step used to enter and leave the car on its open side, and from this run-board there was a rise of a few inches to the main floor of the car.
So far there is accord; but as to the incidents of the injury and the cause of it, the evidence is in irreconcilable conflict. Thus, on plaintiff's part there was evidence tending to show that the car reached the place designated by defendant for passengers to get on and off; that it stopped; that at the time plaintiff undertook to board the car it was standing...
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