Taylor v. Scherpe & Koken Architectural Iron Co.

• Decision Date: 10 March 1896
• Citation: 34 S.W. 581,133 Mo. 349
• Parties: TAYLOR et ux. v. SCHERPE & KOKEN ARCHITECTURAL IRON CO.
• Court: Missouri Supreme Court

34 S.W. 581

133 Mo. 349

TAYLOR et ux. v. SCHERPE & KOKEN ARCHITECTURAL IRON CO.

Supreme Court of Missouri, Division No. 1.

March 10, 1896.

NEGLIGENCE OF SERVANT — INJURIES TO THIRD PERSONS — EVIDENCE — INSTRUCTIONS — DAMAGES.

1. In an action for injuries from being run into by a horse and buggy negligently driven by defendant's servant, a refusal to allow the servant to testify whether he willfully ran into plaintiff was proper, where the only allegation in the petition on that issue was an argumentative one that the injuries could not have been inflicted save through "the gross mismanagement and carelessness, amounting to criminal neglect," of the servant: especially where plaintiff, in open court, disclaimed that the petition claimed that the servant acted willfully.

2. In an action for injuries from being run into by a horse and buggy negligently driven by defendant's servant, evidence by defendant's servant that the horse was running away when the accident occurred, corroborated by other witnesses, does not warrant the direction of a verdict for defendant, where there is evidence for plaintiff that the horse was at the time only going at a fast trot, was turned aside to avoid collision with other vehicles just before the accident, was stopped a short distance beyond, and that the servant did not get out to repair the break in the harness, which he claimed was the original cause of the runaway.

3. In an action for injuries, an instruction requiring the jury, in estimating damages, to include all such personal injury "as you may believe from the evidence" will result to her in the future in direct consequence of "the acts herein complained of," is not objectionable as allowing punitive damages under an allegation of the petition that they would not have been inflicted save for the gross carelessness of defendant's servant, "amounting to criminal neglect," where plaintiff, in the presence of the jury, disclaimed such damages, and the court excluded evidence to show them.

4. An instruction is not objectionable as referring the jury, by the expression "in direct consequence of the acts herein complained of," to the petition for the issues; it appearing that the expression referred to acts complained of, and theretofore mentioned in the instructions.

5. An instruction, in an action for personal injuries, requiring the jury, in estimating damages, to include permanent injuries, is not objectionable as using the word "permanent," when there was no evidence of permanent injuries, where it is modified by the expression "as you may believe from the evidence."

6. The court, in giving instructions, may assume as proved what both parties, during the trial, have assumed and treated as facts.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Action by Joseph Taylor and wife against the Scherpe & Koken Architectural Iron Company for personal injuries to the wife. From a judgment for plaintiffs, defendant appeals. Affirmed.

B. Schnurmacher, for appellant. E. A. B. Garesche and F. A. Hobein, for respondents.

ROBINSON, J.

This action by plaintiffs, as husband and wife, was instituted to recover damages for alleged injuries received by the wife on one of the public streets of the city of St. Louis, November 29, 1890, through the alleged careless driving of a servant of defendant. The averments of the petition, so far as they relate to the negligence charged, are "that while plaintiff Mary Taylor was passing along what is known as the `sidewalk' of a certain public street in the city of St. Louis, known as `Chouteau Avenue,' and in the vicinity where the Missouri Pacific Railroad tracks cross said Chouteau avenue, the servant of defendant so carelessly drove and managed a horse and wagon used by him, and drove the same at such a rapid gait, over and along said Chouteau avenue, and over and upon said portion of said street which was known as the `sidewalk' thereof, as aforesaid, that, by reason of his negligence in said respect, plaintiff Mary Taylor was struck by said wagon and horse as aforesaid, and violently dashed and thrown to the ground; that while plaintiff was passing along what is known as the sidewalk of said public street, as aforesaid, she had no reason to apprehend any danger from said wagon or horse, as aforesaid, nor could said injury have been inflicted save through the gross mismanagement and carelessness, amounting to criminal neglect, on the part of the servant of defendant, as aforesaid." The defendant, for answer, filed a general denial, and at the trial, among other facts, the testimony disclosed that while the plaintiff Mary Taylor was walking west on Chouteau avenue, along the north side of the street, near to where Chouteau avenue crosses the Missouri Pacific tracks, she was run into by a buggy and horse belonging to and being used by one of the defendant's servants in the prosecution of its business; and that she received very severe injuries, as a result of which, the attending physician says, "she shortly afterwards gave premature birth to a child, which left her womb and uterus in an abnormal condition, and caused irregular and long periods of menstruations"; and, further, the doctor says: "If Mrs. Taylor was a strong, healthy woman, as she claimed to have been, before the injury, her present condition is the probable result of and due to her injuries, and that there is now no certainty that she will ever regain perfect health." Dr. Bernays, called as a medical expert, testified as follows: "I then examined her womb, and found that the womb was injured. * * * From the history of her case, and the examination which I made, I should unhesitatingly say that the pain Mrs. Taylor complains of in her back and the lower portion of her body were caused by an enlargement of the womb. It is the effect of pressure upon the womb that caused the falling down. Considering the facts of the injury sustained by Mrs. Taylor, the disease of the organs that I found were probably caused by this miscarriage. * * * I do not believe she will ever recover until the time her monthly sickness ceases. The sexual life of a woman is from 45 to 50 years of age. She will not probably recover until her sexual life is over. I do not think her womb will ever come down to its normal size before that time. That is the result of my experience, no matter what kind of treatment you may give the case. * * * The enlargement of the womb causes discomfort to women. It causes frequent hemorrhages. It prevents pregnancy, and gives rise to a whole train of nervous ailments, headaches, and other complaints." Mrs. Taylor, after giving an account of how and where she got hurt, says: "I was at that time pregnant about six months and a half. They took me away, and undressed me, and put me to bed, and Dr. Barbee came, and examined me, and bound up the places where I was hurt. He came every day. When I had a miscarriage, Mrs. Kennell waited on me. This occurred some days after the injury. I was totally helpless, and suffered day and night. I could not move myself at all. I suffered all over my body. * * * My child was born dead, and was also decomposed. Before that I had always been in the best of health, and had never suffered similar pains before; in fact, never had any pains at all. I have never been well since the injury; every week I grow worse. It affects me in limbs, in my heart, in my lungs, and also through my lower parts. I suffer terrible pain. Up to the time of this accident, I was strong and healthy. I kept house, and had no servants. I did all my own work up to the time of my injury. I did the washing and ironing for my family. The injuries I received also affect my menses. I have a kind of female trouble since. Before the injury, I never had any trouble with my menstruation; but, since, it has been very irregular. Sometimes it would be two weeks, sometimes three weeks, and would last as long as eight weeks. This condition would leave me weak and hardly able to live." The injuries that plaintiff received, and the aftereffect of them, as well as the deductions and inferences drawn as to the probable continuation and extent, were in no wise assailed or controverted; but defendant's sole defense and reliance, as disclosed by the testimony, was to show its mere liability for the injury, by reason of the fact that the horse driven by defendant's employé became frightened, scared, and ran away, and into plaintiff, on account of the happening of a combination of causes and circumstances, over which neither the driver nor defendant had any control, or could reasonably have anticipated. The case was tried by a jury, under instructions from the court, and resulted in a verdict for plaintiff for $3,500, on which, in due time, a judgment was rendered; and, after unsuccessful effort to have same set aside, defendant...