Chouquette v. Southern Electric Railroad Co.
| Decision Date | 14 November 1899 |
| Citation | 53 S.W. 897,152 Mo. 257 |
| Parties | Chouquette v. Southern Electric Railroad Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Horatio D. Wood Judge.
Affirmed.
Lubke & Muench for appellant.
(1) The court erred in sustaining plaintiff's motion for a new trial. Although there was a finding of nominal damages for plaintiff, in reality this was a verdict for the defendant and the trial court should have so treated it. (a) The petition did not set out a cause of action upon the ordinance regulating the rate of speed at which defendant might operate its cars. There was no averment that defendant or its predecessor ever agreed to perform this ordinance; and there was also no proof adduced showing this. Sanders v. Street Ry., 147 Mo. 411. (b) There was no proof of the allegation of the petition that "in the attempt of the passengers so to escape from said car the plaintiff was violently thrown upon the ground." The proof was clear and plain that plaintiff ran to the rear platform and jumped off the car. Kleiber v. Street Ry., 107 Mo. 240. Under the statute this amounted to a "failure of proof." The allegation as made by her was essential. R S. 1889, sec. 2238; Chitty v. Railroad, 148 Mo. 64. (c) The evidence adduced by the plaintiff herself agreed with that produced by the defendant, and showed that defendant exercised the highest degree of practicable care in the selection, repair, maintenance, use and observation of its wires. Where a carrier has done this, its duty is fully discharged. Gibson v. Street Ry., 76 Mo. 282; Dougherty v. Street Ry., 97 Mo. 647; Jackson v. Street Ry., 118 Mo. 200; Sullivan v. Street Ry., 133 Mo. 1; Jacquin v. Street Ry., 57 Mo.App. 333. (d) Where upon the pleadings and the case, as made by the proof, it is shown that the plaintiff is not entitled to recover, a verdict for a nominal sum should not be set aside at the instance of the plaintiff. The verdict will be treated in such a case as being for the defendant. Pritchard v. Hewitt, 91 Mo. 547; Overholt v. Veiths, 93 Mo. 422; Leahy v. Davis, 121 Mo. 227; Ray v. Jeffries, 5 S.W. 867; Simrall v. Martin, 12 S.W. 185; Hubbard v. City, 64 Iowa 245; Lancaster v. Ins. Co., 92 Mo. 468; Brown v. Railroad, 51 Mo.App. 192; Dowd v. Westinghaus Air Brake Co., 132 Mo. 579; Weinberg v. Street Ry., 139 Mo. 286. (2) The rules of law applicable to the case attempted to be made by the plaintiff were laid down by this court in a previous decision as follows: First: The peril or alarm which caused her to run out and jump from the car must have been caused by the negligence of defendant. Second: The apprehension of peril from the standpoint of plaintiff must have been reasonable. Third: The appearance of danger must have been imminent leaving no time for deliberation. Kleiber v. Street Ry., 107 Mo. 240.
A. R. Taylor for respondent.
(1) It is contended by appellant that the verdict for plaintiff for nominal damages was in reality a verdict for the defendant. To test the soundness of this contention, we ask, could a court upon the verdict enter a judgment in favor of the defendant when the jury found the issues joined in favor of the plaintiff? If every juror should be willing to walk into court and swear that he intended to find a verdict for the defendant, no court would hear him impeach his own verdict. (2) Appellant's second contention that the petition stated no cause of action for the violation of ordinance as to speed, because it was not averred or proven that defendant accepted the ordinance. This ordinance granted the defendant its franchise to operate its road, and in the ordinance itself limited the speed. No court has ever held that a street railroad had to accept the law of its existence. By the terms of its creation this company could only run at the prescribed rate. (3) If, as he contends, this verdict is not rendered upon the cause of action set forth in the petition, but upon a good cause of action proven under the petition, then he didn't pursue the remedy pointed out by the statute, to wit: Object to the evidence, when offered, that the plaintiff was hurt by jumping off the car, and not by being thrown off. Then the trial court would then have allowed the petition to be amended to correspond with the evidence. If surprised by the amendment, present an affidavit of surprise and claim a continuance. This was the only way to raise the point. R. S. 1889, sec. 2096. (4) The rule that the appellate court will set aside a verdict for inadequacy or for excess is recognized in the case of Boggers v. Railroad, 118 Mo. 339.
This action was instituted in the St. Louis circuit court to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant, a corporation organized under the laws of Missouri, engaged in operating an electric street railroad in the city of St. Louis. The specific negligence of defendant by which the injury in question is alleged to have been caused is stated in the petition to have consisted, first, in that the wire used by defendant to communicate the electric current to the wheels of the car for the propulsion of the car was defective, old, patched and of inferior wire, small in size and was inadequate for the service, and defective in tensile strength and had frequently broken before, and that defendant negligently refrained from providing sufficient wire of proper tensile strength, etc.; second, that the car was, at the time of plaintiff's injuries, being negligently run, at the place of the accident, at a reckless rate of speed in violation of the ordinances of the city of St. Louis conferring upon defendant its franchise whereby the defendant was limited to a speed, at which it was authorized to run at the place where the accident occurred, of fifteen miles an hour.
The petition then charges, in substance, that on May 30, 1896, plaintiff was received as a passenger on defendant's car; that, while proceeding on her way as such passenger, at a point in said city near Bates street the wire so used by defendant to convey the electric current to the wheels of the car broke, and fell upon the car in which the plaintiff was riding, thereby communicating an electric shock to the passengers, including the plaintiff, surrounding the car with a sheet of fire and filling the air with hissing and strange noises; that the passengers became greatly frightened at said fire and noises, and crowded and pushed each other to get out of the car and thus escape the danger which encompassed them; that in the attempt of the passengers to so escape from the car the plaintiff was violently thrown upon the ground, thereby injuring, wounding and bruising plaintiff; that she sustained a severe shock to her body from the electric current which came through the car, and by her fall received contusions on her arms and body, and a compound fracture of her skull, concussion of the brain, and an injury to her spinal column; that by reason of said injuries she has suffered, and still suffers, great mental anguish and physical pain; that she has been compelled to expend a large sum of money for medical attention, etc.; that she has been permanently disabled and rendered incapable of following her vocation, to wit, that of housekeeper, and was confined to a hospital for a period of one month.
The defendant answered by general denial, coupled with a plea of contributory negligence, in that plaintiff imprudently and without cause jumped off the car.
The cause was put at issue by replication containing a general denial of the new matter set forth in defendant's answer.
A trial was had before a jury, and a verdict rendered in favor of plaintiff in the sum of one cent, and judgment was rendered accordingly.
Thereupon plaintiff filed a motion for a new trial, assigning among other causes as grounds therefor:
First. The verdict was against the evidence.
Second. The verdict was against the law and the evidence.
Third. The verdict for nominal damages was the result of passion, prejudice and mistake, or total disregard by the jury of their duty.
The circuit court sustained plaintiff's motion for a new trial on the ground that the finding was such as to indicate that the jurors were influenced by prejudice, mistake or misunderstanding of their duties, and wholly disregarded the instructions of the court as to the measure of damages. The action of the court in sustaining plaintiff's motion for a new trial was duly excepted to by defendant.
In due time the defendant perfected its appeal from the order of the circuit court setting aside the verdict and judgment and granting plaintiff a new trial.
The errors discussed by defendant's counsel in their brief are:
First. The variance between the pleadings and the proof.
Second. The sufficiency of the petition.
Third. The action of the circuit court in sustaining plaintiff's motion for a new trial.
Fourth. That the verdict for plaintiff for nominal damages only was a verdict for defendant, and should be treated as such.
The first of these assignments of error is not available to defendant for the reason that no question touching the same was properly presented for the determination of this court. An examination of the record discloses that no exception was saved by defendant to the action of the circuit court in respect to this alleged error so as to be available here. If as contended by defendant, the verdict was not rendered upon the averment of the petition that the plaintiff was thrown off the car, but was injured by jumping off the car, objection should have been made to the evidence when offered. The trial court could then have allowed an amendment to...
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