Bante v. Wells

• Decision Date: 03 February 1931
• Docket Number: No. 21066.,21066.
• Parties: BANTE v. WELLS.
• Court: Missouri Court of Appeals

34 S.W.2d 980

BANTE v. WELLS.

No. 21066.

St. Louis Court of Appeals. Missouri.

February 3, 1931.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

"Not to be officially published."

Action by Bernice Bante, by next friend, Louisa Bante, against Rolla Wells, receiver of the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

T. E. Francis and B. G. Carpenter, both of St. Louis, for appellant.

Paul R. Miller, Paul Y. Versen, and George Barnett, all of St. Louis, for respondent.

BECKER, J.

Plaintiff recovered judgment against the defendant in her action for damages for injuries alleged to have been sustained by her as a passenger on one of the defendant's street cars while alighting therefrom at a regular and customary stopping place, by being caused to fall therefrom and being thrown to the street by reason of the premature starting of the car.

The allegations as to plaintiff's alleged injuries, so far as they may be material to the determination of the several assignments of error before us, were that "her right side was severely bruised, crushed, and injured and that shortly after the time of said accident she was compelled to undergo an operation for appendicitis caused by said injury; * * * that she received a severe shock to her nervous system, which is continuous and permanent, and that all the bones and muscles of her right side and entire body were severely wrenched, mashed and lacerated."

Upon trial of the case to a jury, a verdict was returned in favor of plaintiff for $7,500, which sum the trial court held to be excessive to the extent of $1,500, and required a remittitur of that amount as a condition to the overruling of defendant's motion for new trial. From the resulting judgment of $6,000, defendant appeals.

Complaint is made that prejudicial error inheres in instruction No. 2, given at the request of plaintiff, which instruction reads as follows:

"The jury are further instructed that if, under the evidence and the other instructions of the Court, you should find in favor of plaintiff, then in assessing her damages you will allow her such sum as you may find and believe from the evidence will fairly and reasonably compensate her, (1) for any injuries which she sustained in consequence of her right side being bruised, crushed and injured in consequence of her fall from the street car; and for the appendicitis condition, if you shall find from the evidence that the appendicitis was caused or resulted from her injury, and for any pain and suffering of body, if any, in connection with such injuries;

"(2) For any shock to her nervous system resulting from the injury and for such continued or permanent injury to her nervous system, if any, as a result of shock, and for the injury, if any, to the bones and muscles of her right side and body resulting directly from the fall from the street car on which she was riding on the date of her alleged injury."

In considering this assignment of error, we have in mind that the record discloses that the defendant practically based its sole defense on an endeavor to show that any injuries which plaintiff may have sustained were...