Bertram v. People's Ry. Co.

• Decision Date: 05 March 1900
• Parties: BERTRAM v. PEOPLE'S RY. CO.
• Court: Missouri Supreme Court

55 S.W. 1040

154 Mo. 639

BERTRAM v. PEOPLE'S RY. CO.

Supreme Court of Missouri.

March 5, 1900.

CARRIERS—INJURIES TO PASSENGER—INSTRUCTIONS —DAMAGES.

1. Where the uncontradicted evidence showed that plaintiff, a passenger on defendant's street car, was 64 years old when he sustained the injuries complained of, it was not reversible error to give an instruction assuming that he was an old man at the time of the accident.

2. An instruction that the jury should consider plaintiff's advanced age and physical condition, in determining whether defendant's agent in charge of its train stopped it for a reasonable length of time to permit him to take a seat on its gripcar, without any suggestion as to the weight to be given to such facts, is not objectionable as a comment on the evidence.

3. The instruction is not objectionable on the ground that it gives undue prominence to the fact of his age, where his age was immaterial to the issues involved.

4. A verdict for $3,500 in a suit against a carrier for personal injuries will not be set aside as excessive where plaintiff, a man 64 years of age, was in good health for his age prior to the accident, and his ribs were fractured and hand injured, and he remained in bed for 2 months, expectorated blood for the first 6 weeks, and for 6 months could not sleep on one side, because of the pain, and was a nervous wreck, unable to do any work, at the time of the trial 2½ years after the accident occurred.

Sherwood, Marshall, and Robinson, JJ., dissenting.

In banc.

Action by James C. Bertram against the People's Railway Company. From a judgment for plaintiff, defendant appealed, which appeal was transferred to the court in banc. Affirmed.

For opinion in division, see 52 S. W. 1119.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while a passenger on one of defendant company's cars, in the city of St. Louis, on June 29, 1893, by reason of the negligence of the employés in charge of the car. The petition alleges "that immediately after plaintiff had stepped upon said step [referring to the running board of the gripcar], and before he had time and opportunity to take a seat in said gripcar, as aforesaid, defendant's agents and servants operating said train, without notice or warning to plaintiff, and while he was turning to take a seat in said car, carelessly, negligently, and violently started said train, with a sudden and violent lurch thereby throwing plaintiff's body out somewhat from said car, and thereby causing it to come into violent contact with a wagon standing close up to defendant's said track, along which said train was being operated, and on the west side of said Fourth street, and south of the south line of said Pine street. Plaintiff further states that his face was turned from said wagon, and that he did not and could not see it; that said wagon was in full and plain view of defendant's agents and servants in charge of said train, and that they saw said wagon, or by the exercise of reasonable care and diligence might have seen it, before they started said train as aforesaid; that plaintiff, when he stepped upon the step of said gripcar as aforesaid, was in full and plain view of defendant's agents and servants in charge of said train, and that they saw and knew, or by the exercise of ordinary care and diligence could have seen and known, that plaintiff had not, and could not have, seated himself in said gripcar, when they started the said train as aforesaid; and that defendant's agents and servants in charge of said train knew, or by the exercise of reasonable care and diligence could have known, that their careless, negligent, and wrongful act in starting said train as aforesaid while plaintiff was standing on said step, and before he had had an opportunity to seat himself, would bring his body in contact with said wagon." The defenses were a general denial and contributory negligence.

Plaintiff was a witness in his own behalf, and testified that he would be 68 years old in 1897; that on the morning of June 29, 1893, he started out from his home in North St. Louis to visit his daughter, who lived near Lafayette Park; that after taking a car down town he went to the southwest corner of Fourth and Pine streets to take a south-bound car of defendant company, which was to take him out to where his daughter lived; that defendant operated two tracks on Fourth street, south-bound cars running along the west track, and north-bound cars along the east track; that the new Planters' Hotel had just been erected on the southwest corner of Fourth and Pine streets, and was not yet finished, and that there was a stack of bricks on Fourth street, in front of the hotel, extending from the curb close up to the west rail of the west track of defendant, and north to within a few feet of the crossing, and being about 20 feet high and from 15 to 20 feet long. Witness further testified that, when he had barely gotten to the corner above mentioned, one of defendant's trains, consisting of a gripcar and trailer, came along, going in a southerly direction, and that he signaled it to stop; that the train stopped, with the rear end of the front (or grip) car opposite to where witness was standing; that the gripman was at the time at his post, in the middle of the gripcar, and that the conductor was on the east side of the front platform of the trailer, about 7 or 8 feet from witness; that witness then got upon the rear end of the running board (the board running along the side of the gripcar), and caught hold of the upright opposite the last seat, which was occupied by a man whom he afterwards learned to be Mr. H. M. Pollard; that immediately after doing this, and while he was catching hold of the upright in front of Mr. Pollard with his right hand, with a view to getting into the last seat but one, the cars started up violently and with a jerk, and witness, having let go his hold of the upright opposite the last seat, and being in the act of stepping into the last seat but one, was struck on the hand by the rear end of a wagon which was standing near defendant's track, south of and concealed by the stack of bricks above referred to, and thrown "all in a heap up against the back of the seat that [he] was getting into," and against Mr. Pollard; that he was unconscious for a few moments thereafter; that the last thing he remembered before being struck was the conductor's pulling the bellrope to signal the gripman to start; that the next thing he knew he was about to be carried into a drug store; that he begged to be left "in the position he was in," as he "could not be touched"; that he did not remember of any one else getting on the train on the corner at which he boarded it; that witness, remaining on the gripcar at his own request, rode out as far as Castleman avenue, a distance of three or four miles from Fourth and Pine streets; that he got off there, and sat down "in the gutter" until the same cars came back from the terminus of the road; that he does not remember whether any other cars passed him in the meantime; that the train he went out on stopped when it got opposite to him, going back, and that he boarded it and rode back to the corner of Fourth and Pine streets; that he was assisted onto the car he came from North St. Louis on, and rode back to his home, arriving there about 2 o'clock p. m.; that the accident had occurred at 10 o'clock in the morning; that he was put to bed when he got home, and that in the evening Dr. Lutz was telephoned for, but that Dr. Lutz did not call on him until 2 o'clock p. m. on the day after the accident; that Dr. Lutz had been recommended to him by the conductor of the cars on which the accident happened, because he was defendant company's physician, and would therefore be cheaper; that witness remained in bed about two months as a result of the injuries received, and that Dr. Lutz attended him for the first two weeks of that time, calling on him once a day during the first week; that Dr. Lutz found some of witness' ribs fractured, and bandaged him, and that witness expectorated blood, "more or less," for about 6 weeks after the accident; that witness consulted three other physicians after Dr. Lutz had ceased calling, making two visits to one of them, Dr. Garlock; that, during the time of his illness, witness' wife nursed him; that before the accident he was in better health than he had been in his life, and that his physical condition was very good; that since the time of the accident his whole nervous system was wrecked, from the shock and injury inflicted upon him by defendant; that for 6 months after the accident he had such excruciating pains in his right side that he could not lie on that side at all, and that at the time of trial, 2½ years after the accident, he had pains on both sides,—mostly on the left side (indicating the region of the short ribs),—and had been and was wholly unable to do anything at all. Witness further testified that he found a legal card of Mr. H. M. Pollard in his pocket when he reached home, and that he went to see that gentleman as soon as he was able to go out, and directed him to write to defendant company, as his (witness') attorney. In answer to a question as to his occupation, witness then testified that he sold buggy stock at the corner of Fourth street and Chouteau avenue before the accident, and explained that by "buggy stock" he meant "buggies, carriages, phaetons, and all such things as that"; and on a question by the court he added to this, "horses, harness, and whips." On objection of defendant, witness was not allowed to testify as to the net income from this business, as he had alleged in his petition that he had been engaged in the business of buying and selling "horses and mules"; and plaintiff thereupon asked leave to amend his petition in that particular, but, on the objection of defendant, withdrew the application. Witness was not able to...