Hawes v. Kansas City Stock-Yards Co.

Decision Date02 February 1891
Citation15 S.W. 751,103 Mo. 60
PartiesHAWES v. KANSAS CITY STOCK-YARDS CO.
CourtMissouri Supreme Court

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

The following statement to accompany the opinion of the court was filed May 25, 1891: The instruction referred to in the opinion reads as follows: "(1) Although the jury should believe from the testimony that the plaintiff had knowledge of the dangerous and vicious character of the horse in question, yet, if the defendant's managers also knew of it, and, after plaintiff had mounted the horse, said managers, or any of them, whipped, or caused the horse to be whipped, and thereby rendered it more dangerous and unmanageable, and if, by reason thereof, the plaintiff, without fault on his part, and while in the exercise of ordinary care, was thrown from the horse and injured, then they should find for the plaintiff in such sum as they believe will compensate him for his injuries so received, not exceeding the sum of twenty thousand dollars; and by `ordinary care' is meant such care as a person of ordinary prudence would exercise under the same or similar circumstances." As defendant's counsel, neither in brief nor argument in this court, have made the point that the evidence at the trial did not justify the submission of the case to the jury, it is not thought necessary to make any fuller statement of the facts than appears in the opinion of the court.

Pratt, Ferry & Hagerman, for appellant. Wm. Rush, Jr., and L. G. Rowell, for respondent.

BARCLAY, J.

This action is to recover damages for personal injuries sustained by plaintiff in consequence of alleged negligence of defendant as proprietor of large stock-yards in Kansas City. Defendant denied all fault, and charged contributory negligence upon plaintiff, which the latter denied in his reply. For the purposes of this appeal it will not be necessary, in the view we take of it, to give more than a bare outline of the case as presented by the record. Plaintiff's evidence tends to show that he was in defendant's employ about its sale stables, and was directed to ride one of its horses for the purpose of exhibiting it to an intending purchaser. The animal was strong, and not fully trained. While plaintiff was thus riding it, the defendant's vice-principal negligently struck it with a whip in consequence of which it got beyond plaintiff's control, ran away, and then fell, throwing plaintiff off, injuring him severely and permanently. The petition alleged that plaintiff was dependent on his manual labor for a livelihood, and that, in consequence of the said injury, he had been wholly disabled from performing such labor, and had suffered great bodily anguish, and been put to great expense in seeking to be cured, etc., in the sum of $20,000. The evidence on the issue of his damages tended to prove that his leg had been broken below the knee, and his right shoulder bruised, and that he was hurt inwardly; that his spine was injured by concussion, and that he had difficulty in discharging the contents of his bladder and bowels; that he was confined to bed some six weeks after the accident, and had been laid up about half the time since; that at that time he was receiving $40 a month as wages; that the injury to the spine was probably permanent; and that he was disabled from labor, and would probably remain so. The cause was tried with a jury, and a verdict and judgment for plaintiff for $9,000 followed, from which defendant appealed in due course.

The only instruction by the court touching the proper amount of damages to be awarded in event of a verdict for plaintiff, was that they then should find for him in such sum as they believed would "compensate him for his injuries, so received, not exceeding the sum of twenty thousand dollars." This declaration totally failed to inform the jury of the proper elements of compensation within the meaning of the law. It gave them a roving commission to conjecture the consequences of plaintiff's injuries, however remote, and to apply such measure of compensation therefor as might to them seem appropriate, without reference to the legal rules for determining the limits of such compensation. What are the proper elements of damage, within the meaning of the law in a case of this kind, is a question for the court; but the ascertainment of the proper sum to be awarded for them is a question for the jury. We think the instruction in this case erroneous. There being material error in giving it, a new trial should follow, unless it can be affirmatively shown that it was harmless. The verdict rendered was for $9,000, and no reason has been suggested towards showing that the instruction did not have a bearing on the result. We therefore must consider the action of the trial court in the particular mentioned as necessarily prejudicial to the defendant. Counsel for plaintiff appear to suppose that the instruction mentioned finds support in former decisions of this court; but we do not regard the cases cited as approving it. In Waldhier v. Railway Co., (1885,) 87 Mo. 37, the trial court gave this instruction, viz.: "No. 5. The court instructs the jury that if you find for the plaintiff you should assess his damages at such a sum as you may believe him entitled to, but in an amount not exceeding fifty thousand dollars. If your verdict is for the plaintiff, in estimating his damages you should take into consideration the nature and extent of his injuries, and the pain and suffering, if any, occasioned thereby." On appeal this court said, (referring thereto:) "The fifth instruction, which relates to the measure of damages, is not carefully worded. The latter part...

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