Bell v. United Railways Company of St. Louis
| Decision Date | 05 May 1914 |
| Parties | JOHN T. BELL, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Charles Claflin Allen, Judge.
AFFIRMED.
Judgment affirmed.
Boyle & Priest and S. P. McChesney for appellant.
(1) The court erred in giving plaintiff's instruction number 2 on the measure of damages--Because said instruction, and particularly the following, "his loss of time, his bodily and mental suffering, his expenses incurred in and about attempting to cure himself, the extent of his injuries," assume as facts matters that were disputed in evidence and should have been properly hypothesized so that the jury could pass upon them. Fullerton v. Fordyce, 121 Mo. 1; Davidson v. Transit Co., 211 Mo. 357; Freeman v. Railroad, 95 Mo.App. 104; Warrington v. Bird, 168 Mo.App. 390. Because that part of the instruction, particularly the following, "his loss of time . . . his expenses incurred in and about attempting to cure himself," should have been limited to the allegation in the petition to "more than $ 500," which we take to mean "approximately or about $ 500." Radke v. Box Co., 229 Mo. 1; Smoot v Kansas City, 194 Mo. 522; Finley v. Railroad, 238 Mo. 15, 16; Heinz v. Railroad, 143 Mo.App. 38; Tinkle v. Railroad, 212 Mo. 471. Because the loss of time should have been limited to the allegation in the petition, which states a loss of about one year's time. Radke v. Box Co., 229 Mo. 1; Smoot v. Kansas City, 194 Mo. 522; Finley v. Railroad, 238 Mo 15, 16; Heinz v. Railroad, 143 Mo.App. 38; Tinkle v. Railroad, 212 Mo. 471. Because that portion of the instruction, particularly the following, "his expenses incurred in and about attempting to cure himself," are entirely too broad, in that they should be limited to the reasonable expenses incurred. Smoot v. Kansas City, 194 Mo. 527; Grattan v. Suedmeyer, 144 Mo.App. 726; Freeman v. Railroad, 95 Mo.App. 104. Because that portion of the instruction, particularly the following, "his expenses incurred in and about attempting to cure himself," is so broad as to allow a recovery for any expense pertaining to a cure, including medicines which were alleged in the petition, but upon which no evidence was offered, and no proof had. (2) Because the verdict of the jury for $ 7500 is excessive.
Thomas B. Crews for respondent.
(1) The court did not err in giving plaintiff's instruction number 2--Because said instruction does not in truth assume any fact, but, on the contrary, leaves the jury to draw its conclusions from the evidence. The jury is instructed that it "may, in estimating his damages, take into consideration all the facts and circumstances as detailed in evidence; . . . and allow him therefor such sum as they may believe from the evidence he has been damaged as shown in the evidence, not exceeding fifteen thousand dollars." Klutts v. Railroad, 75 Mo. 642; Taylor v. Iron Co., 133 Mo. 349; Feary v. O'Neill, 149 Mo. 467; R. S. Mo. 1909, Secs. 1850, 2081. Because, even if its language could be construed as assuming the existence of any fact, or facts, they are not matters disputed in evidence. There was no evidence offered by defendant relating to plaintiff's loss of time, bodily and mental suffering, his expenses incurred, nor was it disputed, in the evidence, that he was injured. The most that appellant can say on this point is that one of his many alleged injuries, or the extent of his injuries, was disputed in evidence. Moreover instruction No. 1, given at defendant's request, assumed the existence of plaintiff's injuries. Warrington v. Bird, 168 Mo.App. 389; Murphy v. Railroad, 168 Mo.App. 588; Fullerton v. Fordyce, 121 Mo. 1; Davidson v. Transit Co., 211 Mo. 359; Taylor v. Iron Co., 133 Mo. 365; Fullerton v. Fordyce, 121 Mo. 1; Klutts v. Railroad, 75 Mo. 647. Because the instruction objected to in this case is identical in terms with instruction number 4 in the case of Maxwell v. Hannibal & St. Joe Ry. Co., 85 Mo. 95, which instruction was affirmatively approved in that case, and, although that case has been often cited, said instruction has never been criticised in the appellate courts. Maxwell v. Railroad, 85 Mo. 95. Other similar instructions have been approved: Taylor v. Iron Co., 133 Mo. 349; Waldheir v. Railroad, 87 Mo. 48; Furnish v. Railroad, 102 Mo. 443. The contention of appellant that the words in said instruction "his loss of time . . ., his expenses incurred in and about attempting to cure himself," should have been limited to approximately or about $ 500, or to one year of time, is not well taken. The petition alleged--and any other reading of it must be hypercritical--loss of time and money prior to the filing, and in the future, as consequences of the injuries and both were sustained by the evidence, and were not disputed anywhere in the evidence. Heinz v. Railroad, 143 Mo.App. 42; Lindsey v. Kansas City, 195 Mo. 166; Tandy v. St. Louis Transit Co., 178 Mo. 240; Shinn v. Railroad, 248 Mo. 173; McManama v. United Railways, 158 S.W. 442. If it is the contention or theory of appellant that the petition contains two counts, or a number of counts, and that separate findings should have been made, i. e., on medical expenses, and one or more other injuries, the complaint comes too late because no instruction was asked for such separate finding or verdict, and no complaint on this score was made in the motion for new trial. Kansas City Hotel Co. v. Sigement, 53 Mo. 176; R. S. Mo. 1909, sec. 2082; King v. St. Louis, 157 S.W. 498; Shinn v. Railroad, 248 Mo. 173; Cartwright v. Culver, 74 Mo. 179; Orr v. Rode, 101 Mo. 399; Hoke v. Central, 194 Mo. 584; Jordan v. Transit Co., 202 Mo. 418; Finnell v. Street Ry. Co., 159 Mo.App. 522. In answer to appellant's complaint that the instruction mentioned is "too broad," a casual inspection of its language should sufficiently answer that criticism. It was not mandatory. The instruction throughout told the jury they may, in estimating plaintiff's damages, consider the facts and circumstances detailed in evidence, . . . and allow him therefor such sum as they may believe, from the evidence, he has been damaged "as shown in the evidence," not exceeding fifteen thousand dollars. McManama v. Railway Co., 158 S.W. 442; Jennings v. Swift, 130 Mo.App. 391; Davidson v. Transit Co., 211 Mo. 362; Taylor v. Iron Co., 133 Mo. 364; Maxwell v. Railroad, 85 Mo. 95; Tirry v. Hogan, 181 Mo.App. 48; Browning v. Railroad, 124 Mo. 55. There was evidence of expenses for medicines by plaintiff. Young v. Street Ry. Co., 126 Mo.App. 1. But, in any event, the point cannot now be considered because, among other reasons, the attention of the trial court was not called to it in motion for new trial. Blakely v. Railroad, 79 Mo. 388; Ringo v. Railroad, 91 Mo. 667; Stone v. Wolfskill Bros., 59 Mo.App. 441. (2) The objections urged by appellant to this instruction are untenable, but, in any view of the case, they come too late. Appellant asked no specific instructions on the measure of damages. Tandy v. Transit Co., 178 Mo. 240; Jennings v. Swift, 130 Mo.App. 391; Matthews v. Railroad, 142 Mo. 665, 666; First Nat. Bank v. Ragsdale, 171 Mo. 186; Tetherow v. Railroad, 98 Mo. 74; Norris v. Railroad, 239 Mo. 717; United States Smelting Co. v. Parry, 166 F. 407. Even though it were considered that the instruction is subject to some criticism--not of the most approved diction, not happily worded--this would not constitute reversible error under the pleadings and evidence in this case. Decatur Bank v. St. Louis Bank, 21 Wallace (88 U.S.) 294; Tirry v. Hogan, 181 Mo.App. 48; Waldheim v. Railroad, 87 Mo. 48; McManama v. Railways Co., 158 S.W. 442. (3) The verdict of the jury for $ 7500 is not excessive. Whenever the verdict does not on its face appear to be the result of passion or prejudice, it is wholly within the province of the jury. Gurley v. Railroad, 104 Mo. 211; Waldheim v. Railroad, 87 Mo. 37; Furnish v. Railroad, 102 Mo. 438; Whalen v. Railroad, 60 Mo. 323; Pry v. Railroad, 73 Mo. 123; Railroad v. Hadley, 170 Ind. 204. There is nowhere in the case manifestation of passion or prejudice on the part of the jury, and there was no complaint during the trial, nor in the motion for new trial, of any unfair act or of any circumstance displaying passion or prejudice.
This is a suit for damages accrued to plaintiff through the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff, a passenger on one of defendant's street cars, while alighting therefrom was precipitated into the street, and thus received his injuries. The evidence for plaintiff tends to prove that he had notified the conductor of his destination, and, upon the car stopping there, went to the rear platform to disembark. While in the act of alighting from the car, the conductor caused it to start forward with great force, so as to occasion the injuries complained of. On the part of defendant, the evidence tends to prove that plaintiff voluntarily stepped off of the moving car under circumstances which would cast no liability on defendant for his injury.
The questions of defendant's negligence and that pertaining to the conduct of plaintiff were submitted to the jury under instructions in nowise complained of, as was also the fact with respect to the manner of plaintiff's receiving his injuries. It appears from the evidence that plaintiff's injuries were not only painful but of a serious nature and permanent in character as well.
The argument advanced here for a reversal of the judgment proceeds alone on plaintiff's instruction on the measure of damages. The instruction complained of is as...
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