Beave v. St. Louis Transit Co.

• Decision Date: 24 December 1907
• Citation: 212 Mo. 331,111 S.W. 52
• Parties: BEAVE v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

111 S.W. 52

212 Mo. 331

BEAVE v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 2.

December 24, 1907.

Rehearing Denied May 19, 1908.

1. CARRIERS—INJURY TO PASSENGER—ACTIONS—VARIANCE.

While plaintiff may make a prima facie case by merely alleging and proving that he was a passenger, that a collision occurred, and that he was injured in consequence thereof, when he alleges that he was injured because the servants of defendant transit company so negligently managed the car on which he was a passenger and so negligently maintained it and the machinery, appliances, brakes, and running gear thereof as to cause the car to be collided with by the engine and cars of the defendant railway company upon a crossing, he relies on specific acts of negligence, and cannot recover on the ground that the company failed to exercise the highest practicable degree of care, such as would be exercised by very careful and skillful employés under the circumstances.

2. NEGLIGENCE — PLEADING — VARIANCE — RIGHT TO RECOVER ON GROUNDS NOT ALLEGED—REASON FOR RULE.

A person may not plead one cause of action for negligence and recover upon another, for charging specific acts of negligence is equivalent to stating that there were no other acts of defendant which caused or contributed to the injury.

3. CARRIERS—INJURY TO PASSENGER—ACTION —QUESTIONS FOR JURY.

In an action against a carrier for injuries to a passenger, whether a defendant was negligent in the management and maintenance of a certain car and the machinery, appliances, brakes, and running gear thereof held, under the evidence, for the jury.

4. SAME — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

In an action against a street railway company for injuries to a passenger, where the evidence disclosed that defendant's servants in charge of the car applied the brake and reversed the power in their efforts to stop it before reaching a railroad crossing, but were unable to do so, and in consequence it was struck by a railroad engine and derailed, it was proper to charge that if defendant was negligent in the management of the car, and negligently maintained the car, machinery, appliances, brakes, and running gear thereof, and that in consequence thereof he was injured, the jury should find for plaintiff.

5. APPEAL AND ERROR—PARTIES ENTITLED TO ALLEGE ERROR—INSTRUCTIONS — RIGHTS OF CODEFENDANTS AMONG THEMSELVES.

A plaintiff, in an action against a street railway company and other railway companies for injuries from a collision at a crossing, is not responsible for errors committed by the court in giving or refusing instructions declaring the rights of the defendants among themselves; and such error should not work to his prejudice on appeal.

6. TRIAL—INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

An instruction that there could be no recovery against a defendant street railway company if plaintiff's injuries were directly due to mere accident or misadventure is properly refused, when there is no evidence tending to show that the injuries were the result of an accident, and it appears that the injuries were caused either by negligence of the motorman, the defective condition of the brake, or the steep and slippery condition of the track.

7. EVIDENCE — EXAMINATION OF EXPERTS — HYPOTHETICAL QUESTIONS — "CONCUSSION OF BRAIN."

Where there is evidence tending to prove a fact in the case, it is not error to assume in a hypothetical question that such fact exists, and, in an action for personal injuries, where it appeared that plaintiff sustained a fracture of the skull, and was thereby knocked senseless, and that he remained unconscious for 17 days, during which time a portion of his skull was removed, even though the witnesses did not use the words "concussion of the brain" in testifying as to the injuries, the blow received did in fact produce concussion of the brain, and it was not error to sustain a hypothetical question based on the assumption of such fact.

8. WITNESSES—COMPETENCY — CONFIDENTIAL RELATIONS.

In an action for personal injuries, where it appeared that a certain doctor was in charge of the hospital in which plaintiff was placed shortly after his injury, that he examined plaintiff almost every day, because, as he testified, he was responsible for every person who entered the institution for treatment, and it further appeared that his associate physicians and surgeons treated plaintiff under his supervision, the knowledge thus acquired of plaintiff's condition was within the spirit, if not the letter, of the statute prohibiting physicians and surgeons from divulging information acquired while prescribing for or treating patients, and the mere fact that the doctor in question did not himself prescribe for or treat plaintiff was immaterial on the question of his competency.

9. DAMAGES — EXCESSIVE DAMAGES — PERMANENT PERSONAL INJURIES.

Plaintiff sustained internal and external injuries of a permanent character. His skull was crushed, so that a portion one inch by an inch and a half in length was removed, the brain being covered and protected only by the scalp and soft tissues of the head. His mind was affected so that he could not concentrate his attention on his business. He became weak and unable to perform manual labor. His eyesight was affected. He suffered great physical pain and mental anguish. His head continued to pain him when he exerted himself, and he was unable to earn a living at the time of the trial. He was also liable for a $300 bill for medicines and medical treatment. Held, that a verdict for $7,500 was not excessive.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by Horace P. Beave against the St. Louis Transit Company and others. From a judgment for plaintiff against the Transit Company, it appeals. Reversed and remanded.

The plaintiff instituted this suit in the circuit court of the city of St. Louis against the St. Louis Transit Company, United Railways Company of St. Louis, and the Missouri Pacific Railway Company to recover the sum of $25,000 damages on account of personal injuries sustained by him, caused by the alleged negligence of the defendants in permitting a street car of the transit company on which plaintiff was a passenger to come in collision with an engine and train of cars belonging to and moving upon the tracks of the Missouri Pacific Company, at the intersection of those railroads on Chouteau avenue, in the city of St. Louis. The cause was dismissed as to the United Railways Company, and, upon a trial had, the jury found for plaintiff against the transit company, and assessed his damages at the sum of $7,500, and in favor of the Missouri Pacific Railway Company. After taking the proper preliminary steps, the transit company appealed the cause to this court.

The material allegations of the petition, in so far as relate to the transit company, are substantially as follows: The plaintiff states: That defendants are corporations by virtue of the law of Missouri, and were such at the times stated. That at said times defendants St. Louis Transit Company and United Railways Company of St. Louis were operating the street railway and car herein mentioned for the purpose of carrying passengers for hire, and at said times the Missouri Pacific Railway Company was a steam railroad, and operated the railway and engine and cars herein mentioned as colliding with the car on which plaintiff was a passenger, and also maintained the gate and watchman at the street crossing herein mentioned. That on the 13th day of August, 1903, the plaintiff was a passenger on the car of defendants St. Louis Transit Company and United Railways Company of St. Louis, proceeding west on Chouteau avenue, an open public street within the city of St. Louis, at the crossing of said street, with the railway track of defendant Missouri Pacific Railway Company, when said street car was collided with by an east-bound engine and train of defendant Missouri Pacific Railway Company, and plaintiff was thereby greatly and permanently injured upon his head and body, leg, and back and chest. His skull was crushed, and the bones thereof broken, and the plaintiff sustained internal injuries, and his nervous system was permanently injured. And plaintiff avers: That the servants of defendants St. Louis Transit Company and United Railways Company of St. Louis so negligently and unskillfully managed said car on which the plaintiff was such passenger, and so negligently maintained said car and the machinery and appliances thereof, and the brakes and running gear thereof, as to cause and suffer said car to be collided with by the engine and cars of the defendant Missouri Pacific Railway Company upon said crossing, and to cause plaintiff's injuries as aforesaid. That, by his injuries so sustained, the plaintiff has suffered great pain of body and mind; has been permanently crippled and disabled from labor and his avocation as a clerk; has lost and will lose the earnings of his labor and avocation; has incurred large expenses for medicines, medical and surgical attention and nursing, and his health permanently injured and his memory impaired, to his damage in the sum of $25,000, for which sum he prays judgment. The answer of the transit company was a general denial. The answer of the Missouri Pacific Company was, first, a general denial; second, contributory negligence; and, third, at the time of plaintiff's alleged injury, there was in force in the city of St. Louis an ordinance, No. 21,113, approved April 5, 1903, wherein it is provided by subdivision 2 of section 1760a thereof that "at all points where the street car tracks may intersect or cross any steam railroad track, every street car shall be brought to a full stop not less than ten (10) nor more than twenty-five (25) feet from nearest point of intersection, and shall not proceed to cross said railroad track until, upon sufficient investigation, the conductor or other proper agent, appointed by...