Coontz v. Missouri Pac. Ry. Co.

• Decision Date: 16 May 1893
• Parties: COONTZ v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

22 S.W. 572

115 Mo. 669

COONTZ v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

May 16, 1893.

DAMAGES FOR PERSONAL INJURIES — PLEADING AND PROOF — LOSS OF EARNINGS.

In an action for personal injuries, where the only allegation in the petition which has any relation whatever to loss of earnings is that plaintiff "has been permanently disabled from labor," plaintiff cannot testify as to what his earnings were before he sustained the injury.

Appeal from circuit court, St. Charles county; W. W. Edwards, Judge.

Action by Edwin Coontz against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

H. S. Priest and Wm. S. Shirk, for appellant. A. R. Taylor, for respondent.

BURGESS, J.

This is an action for personal injuries. The plaintiff was at the time of the accident an employe of defendant, and in discharge of his duties as a conductor of an engine used as a pusher. The negligence complained of on the part of defendant, which is alleged to have been the cause of the accident and consequent injury, is "that, at the time of said injury, said engine and tender were greatly worn, and in a dangerous and defective condition; that the wheel or truck of the tender was worn out and defective and crooked, and the material of said wheel had sand holes in it, thereby weakening it, and making it defective, and insufficient for the use to which defendant was applying it, and the coupling apparatus of said engine and tender was worn out, and defective, and insufficient for the purpose to which defendant was applying it; that, by reason of said defects, and insufficiencies of said engine and tender, * * * the wheel of said tender was caused to break, and said engine and tender to be derailed, and plaintiff to be injured and that defendant knew, or might have known by the exercise of reasonable and ordinary care, the unsafe condition of said engine and tender." The answer was a general denial and contributory negligence by plaintiff. The evidence shows that the accident occurred on the 15th day of November, 1888. At the time plaintiff was on duty as conductor of the engine which caused the injury. He had been at work on the engine 15 to 18 months, except while it was in the shops, being repaired. The work of the engine was to push trains up the grade from Pacific to Gray's Summit, and from Labadie to Gray's Summit, and to do yard work at Pacific, at Marshall's switch and at Hunt's switch. Plaintiff's duties were to oversee switching, keep account of the cars handled, and receive orders from the train dispatcher. He was hurt by being thrown to the ground. His hip was broken, and his leg, at the time of the trial, December 11, 1890, was from 2¼ to 2½ inches shorter than it was before the injury. Against defendant's objections, plaintiff was permitted to testify that he had been earning, up to the time he was hurt, $75 per month, and that he had earned nothing since that time. Plaintiff paid out $50 for doctor's bill, was confined to his bed about 10 weeks, and was unable to do any manual labor. There was a verdict and judgment for plaintiff for $6,500. A motion for new trial was filed by defendant, overruled by the...