Slaughter v. Metropolitan St. Ry. Co.

Citation23 S.W. 760,116 Mo. 269
PartiesSLAUGHTER v. METROPOLITAN ST. RY. CO.
Decision Date30 May 1893
CourtUnited States State Supreme Court of Missouri

3. Defendant pleaded that by the laws of the state in which the injury was received by plaintiff the latter was guilty of contributory negligence, and read a statute of such foreign state, adopting the common law, and also several decisions of the supreme court of that state. Held that, since the common law prevailed in that state as in Missouri, it was for the court to declare the law of the case, and it was error to permit such decisions to be read without instructing the jury as to the purpose for which they were introduced, and that it was the duty of the jury to look to the court for the law applicable to the case.

4. In an action for injuries caused by the sudden increase in speed of a car from which plaintiff was about to alight, it was proper to refuse an instruction that "the instincts of self-preservation are not proper to be considered in determining whether or not plaintiff was guilty of contributory negligence."

Appeal from circuit court, Jackson county; James H. Slover, Judge.

Action by E. T. Slaughter against the Metropolitan Street-Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Pratt, Ferry & Hagerman, for appellant. George & Lowe and Wash Adams, for respondent.

GANTT, P. J.

This is an action for personal injuries, sustained by the plaintiff on the 4th of October, 1889, by being thrown from an electric street car operated by defendant. Plaintiff recovered a verdict for $5,000, and defendant appeals. The following averment sufficiently states the case made in the petition: "That plaintiff was standing at the crossing where Eighth street runs into Kansas avenue, aforesaid, and stepped onto the front platform of a car in charge of the defendant's employes, the same being a motorman and a conductor. When plaintiff had stepped upon the platform and started to go inside of the car, as other passengers do, the motorman told him to get off, and to get on the rear platform. Plaintiff turned, and, following the orders of defendant's employe, started to step off the car; and just as he did so the motorman increased the speed of the car suddenly, and by reason of the sudden and careless starting of the car, and by virtue of the wrongful ordering of plaintiff by the servant of defendant to get off the car, the plaintiff was thrown violently to the ground, and his right arm, wrist, and hand were broken, bruised, and fractured. These bruises and fractures constitute permanent injury, and will render plaintiff a cripple for life. Plaintiff was compelled to employ a physician, buy medicine and drugs, and also suffered great bodily and mental pain. Wherefore plaintiff prays judgment against the defendant for fifteen thousand dollars, ($15,000,) the amount of his damages together with costs." The answer consisted, in a general denial, contributory negligence and the following special plea: "(3) Defendant for further answer avers that the matters and things complained of all occurred in the state of Kansas, and under the laws of said state the acts done by the defendant, its agents, servants, and employes, at the time complained of, did not constitute negligence; and each of the acts done by plaintiff at such time did constitute negligence upon his part, under the laws of such state, and such acts of negligence contributed directly to the injuries complained of." There was evidence tending to prove that plaintiff suffered the injury of which he complains, through a want of care by the motorman in charge of the car, in starting it too rapidly, as plaintiff was about to get off of the front platform, in obedience to the directions of the motorman to get on at the rear of the car, and evidence tending to show it was caused by plaintiff's own negligence. It was a question of fact for the jury, and they found for plaintiff. The grounds urged here for reversal will be considered in the order pursued in the briefs.

1. Plaintiff testified that he was in the furnace and tin business in Kansas City; that on the day of the accident he went to Armourdale, Kan.; that he had stepped on the front of the car to return to Kansas City, and was ordered to get off, and get on at the other end, and just as he started the car shot forward, and threw him, and broke his right wrist. He testified it was two months before he put in any time at the store, and five months before he assumed any responsibility in his business. He testified to the pain he suffered, and the apparently permanent nature of the injury. His physician's bills were $50, including medicines and everything. Had a partner, and drew no salary. He was then asked by his counsel, "Are you able to estimate what your personal services were worth during that five months?" This was objected to by defendant, and the objection sustained, on the ground that it was incompetent, immaterial, and irrelevant. The court, among others, gave this instruction for plaintiff: "(3) If the jury find for the plaintiff, they will award him such a sum of money as damages as shall fully compensate him for the mental and bodily pain and suffering endured by him consequent upon the injury, the loss of time occasioned thereby, the expense of medicine and medical attention attributable thereto, and the loss to plaintiff of strength and efficiency already suffered, and whatsoever may reasonably be expected to ensue in the future therefrom, if the injury was proved to be a permanent one: provided, however, that the verdict shall not exceed fifteen thousand dollars." The defendant complains because the court permitted the jury to consider loss of time occasioned by the injury as an element of damages, because it was not alleged in the petition as the basis of special damages, and, the court having excluded the evidence by which plaintiff sought to show the value of his services during the time lost, there was no...

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