134 S.W. 31 (Mo.App. 1911), Musick v. United Railways Company of St. Louis
|Citation:||134 S.W. 31, 155 Mo.App. 64|
|Opinion Judge:||CAULFIELD, J.|
|Party Name:||HELVA MUSICK, an infant, by GEORGE MUSICK, next friend, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant|
|Attorney:||Glendy B. Arnold for appellant; Boyle & Priest of counsel. S. C. Rogers for respondent.|
|Judge Panel:||CAULFIELD, J. Reynolds, P. J., and Nortoni, J., concur. Reynolds, P. J., and Nortoni, J., concur.|
|Case Date:||January 24, 1911|
|Court:||Court of Appeals of Missouri|
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm, Judge.
(1) The court erred in refusing defendant's demurrer to the evidence offered at the close of plaintiff's evidence in chief and its peremptory instruction offered at the close of the whole case. Plaintiff not being in a dangerous position, a mere start of the car was not negligence. Waldhier v. Railroad, 71 Mo. 514; Saxton v. Railroad, 98 Mo.App. 494; Pryor v. Railroad, 85 Mo.App. 367. (2) Plaintiff's first instruction is erroneous because it submits a different cause of action from that charged by the petition, and is not supported by any evidence of the negligence therein submitted. Plaintiff cannot sue on one cause of action and recover on another. Waldhier v. Railroad, 71 Mo. 514; Heinzle v. Railroad, 182 Mo. 528; Bond v. Railroad, 110 Mo.App. 131. (3) Plaintiff's fourth instruction on the measure of damages is error because it authorized an award of damages for any permanent injuries plaintiff may have sustained and for any pain of body and mental anguish she will in the future suffer as the result of said injuries without any evidence tending to show that her injuries are permanent or that she would in the future suffer pain of body or mind on account thereof. Wilbur v. Railroad, 110 Mo.App. 689. (4) The court erred in permitting plaintiff to state her conclusion that she was jerked from the car into the street, and that the jerk of the car "was a violent jerk." Hedrick v. Railroad, 195 Mo. 122; Guffy v. Railroad, 53 Mo.App. 466; Portuchek v. Railroad, 101 Mo.App. 55. (5) The court erred in permitting plaintiff to testify to the alleged statement made by defendant's physician to the effect that she sustained a badly sprained ankle. 1 Clark and Skyles, secs. 466, et seq.; Robinson v. Walton, 58 Mo. 380; McDermott v. Railroad, 73 Mo. 516; Adams v. Railroad, 74 Mo. 553; Frye v. Railroad, 200 Mo. 377.
(1) The court did not err in refusing defendant's demurrer at the close of plaintiff's case and at the close of the whole case. Schulze v. Railroad, 32 Mo.App. 438; Cobb v. Lindell Ry. Co., 149 Mo. 135; Millar v. St. Louis Transit Co., 215 Mo. 607; Moorman v. Railroad, 105 Mo.App. 711; Cook v. Springfield...
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