Bamber v. United Rys. Co. of St. Louis

• Decision Date: 20 February 1917
• Docket Number: No. 18474.,18474.
• Citation: 192 S.W. 953
• Parties: BAMBER v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

192 S.W. 953

BAMBER v. UNITED RYS. CO. OF ST. LOUIS.

No. 18474.

Supreme Court of Missouri, Division No. 1.

February 20, 1917.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Joseph H. Bamber against the United Railways Company of St. Louis, Missouri. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff, as a result of defendant's negligence in the operation of one of its street cars, on January 19, 1912, while plaintiff was a passenger thereon. This suit was brought in the St. Louis circuit court, on September 16, 1913, and the cause was tried February 28, 1914. In appellant's statement it is said:

"The errors assigned on this appeal relate alone to the excessiveness of the verdict and the instruction on the measure of damages."

Dr. Dorsey testified, in substance, that he was called to see plaintiff the evening of the accident and found him suffering; that he had sustained a fracture of the neck of the long bone of his leg, called the femur. The fracture was right at the elbow and is designated as a fracture of the surgical neck of the femur. He examined plaintiff about one week before the trial below, and found that this injured leg was shorter than the other, from 1½ to 2 inches. He said plaintiff complained a good deal of pain; that he knew plaintiff had suffered pain and became quite nervous afterwards. He said plaintiff's condition would continue about as it was when he examined him.

Dr. Ambrose, sworn as a witness in behalf of defendant, testified that he examined plaintiff on January 21, 1912, and found a fracture of the hip, what he would term intercapsular fracture in the hip joint. He said that plaintiff's lameness was permanent.

Plaintiff testified that the nerves and ligaments were torn; that he was examined by Dr. Smith at Hot Springs, and remained there from three to five weeks; that Dr. Dorsey had been treating him for about two years since the accident. He testified that before the accident he was as healthy as anybody; that the ligaments of his hip have been torn away in such manner as to leave him a cripple for life; that he walks with a limp; that he was confined to his room and used crutches for two or three weeks; that he was not able to go back to his work until September, and then had to walk with a cane. He said his pain was excruciating at times and was almost unbearable; that he had no pain at time of trial, but that his limb would give out on him sometimes, and after walking all day would become very weak.

At the date of his injury, plaintiff was a salesman for Famous-Barr Company, and had been there for about 14 years. He testified, in regard to what he was receiving as salesman before the accident, as follows:

"Q. Prior to and in January, 1912, what were you receiving as salesman? A. Thirty-five dollars a week, and, besides, an extra bonus in 1911; my salary amounted to very near $3,000. Q. How much salary are you getting there now? A. Twenty-five dollars a week. Q. Since when was your salary reduced? A. The first of the year. Q. Of this year? A. Yes, sir. Q. Why was it reduced?"

This question was objected to by counsel for defendant and excluded by the court. He testified that he had expended at least $500 for medical treatment.

In view of the assignment of errors by counsel for appellant, we do not deem it necessary to set out the facts relating to the acts of negligence complained of in petition. Error is assigned in respect to the giving of plaintiff's instruction numbered 3, which will be set out and considered in the opinion.

A verdict was returned by nine of the jurors for $8,000. A motion for a new trial was filed in due time, overruled by the court, and the cause duly appealed by defendant to this court.

Boyle & Priest and Paul U. Farley, all of St. Louis, for appellant. Taylor B. Wyrick, of St. Louis, for respondent.

RAILEY, C. (after stating the facts as above).

Appellant is asking that the cause be reversed and remanded, on the ground that the damages are grossly excessive, and because of the three alleged defects pointed out in plaintiff's instruction numbered 3 given by the court. Said instruction reads as follows:

"(3) The court instructs the jury that if they find for the plaintiff they will assess his damages at such sum as they believe from the evidence will be a reasonable compensation to the plaintiff. First. For any pain of body and anguish of mind suffered by him as the direct result of the injuries sustained by him, if any, as shown by the evidence and caused by the negligence of the defendant, and also for such pain of body and anguish of mind, if any, which will in all reasonable probability result to plaintiff from such injuries in the future. Second. For such reasonable expense as he has incurred for medical services and medicines directly caused by the injuries, not exceeding for this the sum of $564. Third. For any loss of earnings suffered by plaintiff as the direct result of said injuries, not exceeding for this item the sum of $1,800. Fourth. For any loss of earnings, if any, which plaintiff will in all reasonable probability suffer in the future as the direct result of such injuries. The total amount of said recovery not to exceed the sum of $25,000."

I. Paragraph 2 of said instruction reads as follows:

"For such reasonable expense as he has incurred for medical services and medicine directly caused by the injuries, not exceeding, for this, the sum of $564."

It is contended by appellant that plaintiff's expenditures for medicine and medical attention did not exceed $500, and that paragraph 2, supra, informed the jurors that they were at liberty to award plaintiff damages in the sum of $564.

The petition alleges that plaintiff has been compelled to expend large sums of money, to wit, $564, for medical attention, etc. Plaintiff testified, in respect to this matter, as follows:

"Q. How much have you expended for medical treatment? A. At least between $500 and $800; at least that much; at least $500."

The court did not tell the jury that plaintiff was entitled to recover $564 for medical attention, etc., but simply informed the jurors that they could not allow plaintiff more than he claimed in the petition. The language of paragraph 2, above quoted, has been substantially approved by this court since its earliest history, in many cases, some of which are as follows: Dougherty v. Missouri R. Co., 97 Mo. loc. cit. 657, 8 S. W. 900, 11 S. W. 251; Browning v. Railway Co., 124 Mo. loc. cit. 71, 27 S. W. 644; Montgomery v. Railroad, 181 Mo. loc. cit. 489, 79 S. W. 930; Logan v. Railway, 183 Mo. loc. cit. 591, 592, 82 S. W. 126; Devoy v. St. Louis Transit Co., 192 Mo. loc. cit. 207, 91 S. W. 140; Garard v. Coal & Coke Co., 207 Mo. loc. cit. 259, 105 S. W. 767; Tinkle v. Railroad, 212 Mo. loc. cit. 471, 110 S. W. 1086; Partello v. Railroad, 217 Mo. loc. cit. 656, 657, 117 S. W. 1138; Hall v. Railroad, 219 Mo. loc. cit. 578, 118 S. W. 56; Lessenden v. Railroad, 238 Mo. loc. cit. 264, 265, 142 S. W. 332. As the jury made but a single finding as to the damages, there is nothing in the record to indicate that they even allowed as much as $500 for medical attention.

We therefore hold that paragraph 2 was within the averments of the petition, was within the evidence, and likewise within the law, as declared in the long line of decisions heretofore rendered by this court.

II. The third paragraph of said instruction reads as follows:

"Third. For any loss of earnings suffered by plaintiff as the direct result of said injuries, not exceeding for this item the sum of $1,800."

The petition alleges that plaintiff's earning capacity as a salesman has been greatly impaired by reason of said injuries, and that he has lost as wages $1,800. Plainti...