Bertram v. Peoples Railway Company

• Decision Date: 05 March 1900
• Citation: 55 S.W. 1040,154 Mo. 639
• Parties: BERTRAM v. PEOPLES RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

55 S.W. 1040

154 Mo. 639

BERTRAM v. PEOPLES RAILWAY COMPANY, Appellant

Supreme Court of Missouri

March 5, 1900

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

Lubke & Muench and Julius T. Muench for appellant.

(1) Instruction numbered 1, given for plaintiff, was erroneous because: (a) It assumed that plaintiff was an old man. Stone v. Hunt, 94 Mo. 475. (b) It commented on the fact of plaintiff's age, and unduly directed the attention of the jury to that fact by singling it out. Chouquette v. Barada, 28 Mo. 491; Miller v Marks, 20 Mo.App. 369; Hopper v. Vance, 27 Mo.App. 336; Doud v. Reid, 53 Mo.App. 553; Railroad v. St. L. Union Stock Yds. Co., 120 Mo. 541; Wright v. Richmond, 21 Mo.App. 76; Blair v. Railroad, 31 Mo.App. 224; Benjamin v. Railroad, 50 Mo.App. 602; Kingsland v. Iron Co., 29 Mo.App. 526; Weil v. Schwartz, 21 Mo.App. 375. (2) The verdict for $ 3,500, rendered by the jury in favor of plaintiff, is excessive in view of all the evidence adduced, and the judgment thereon should therefore be reversed. Benson v. Railroad, 78 Mo. 504; Marshall v. Railroad, 78 Mo. 610; Parsons v. Railroad, 94 Mo. 286; Nicholson v. Couch, 72 Mo. 209; Schmitz v. Railroad, 46 Mo.App. 380; Tucker v. Railroad, 66 Mo.App. 141. (3) The judgment in the case at bar can not stand, because where the verdict is as high as in this case, compared to the weight of the evidence, the law requires the instructions to be absolutely unexceptionable. Carroll v. Paul's Adm'r, 16 Mo. 226.

C. L. Mott for respondent.

(1) Instruction numbered 1, given on behalf of the plaintiff, was proper: (a) Because the defendant owed the plaintiff the duty to stop its train for such a reasonable length of time as would permit him to take his seat or reach a place of safety. Dougherty v. Railroad, 81 Mo. 325; Ridenhour v. K. C. Cable Co., 102 Mo. 270; Hanks v. Railroad, 60 Mo.App. 274; Weber v. Railroad, 100 Mo. 194; Shearman & Redfield on Neg. (5 Ed.), sec. 508. (b) Because where the passenger is evidently aged, infirm or very young, the duty of the carrier toward him must be performed with due regard to such apparent condition. Ridenhour v. K. C. Cable Co., supra; Hanks v. Railroad, supra; Shearman & Redfield on Neg. (5 Ed.), secs. 508, 510; Hutchinson on Carriers, sec. 669. (2) The assumption of a fact in an instruction of which there is some proof and no countervailing evidence is not reversible error. Dickson v. Railroad, 104 Mo. 491. A fortiori is this true where the evidence of such assumed fact comes from the complaining party. Harrison v. White, 56 Mo.App. 175. (3) The verdict of $ 3,500 is not excessive. Hanlon v. Railroad, 104 Mo. 381; Britton v. St. Louis, 120 Mo. 437; Mellor v. Railroad, 105 Mo. 455; Hall v. St. Joseph Water Co., 48 Mo.App. 356; Buc v. People's Ry. Co., 108 Mo. 179; Foster v. Railroad, 115 Mo. 165; Gorhom v. Railroad, 118 Mo. 408; Burdoin v. Trenton, 116 Mo. 358. (4) Even though the award of damages may appear to be large, the finding of a jury will not be disturbed except in severe cases, and only where the verdict indicates misconduct, undue feeling or prejudice on the part of the jury. Williams v. Railroad, 123 Mo. 573; Sawyer v. Railroad, 37 Mo. 240; Hanlon v. Railroad, 104 Mo. 381.

BURGESS, J. Gantt, C. J., Brace and Valliant, JJ., concur; Sherwood, Marshall and Robinson, JJ., dissent.

OPINION

In Banc.

BURGESS J.

-- 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 employees in charge of the car.

The petition alleges that immediately after plaintiff had stepped upon said step (referring to the running board of the grip car), and before he had time and opportunity to take a seat in said grip car, 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 grip car, 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 grip car, 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 sixty-eight 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 twenty feet high and from fifteen to twenty feet long.

Witness further testified that when he had barely gotten to the corner above mentioned one of defendant's trains, consisting of a grip car and trailer, came along, going in a southerly direction, and that he signalled 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 grip-car, and that the conductor was on the east side of the front platform of the trailer, about seven or eight feet from witness; that witness then got upon the rear end of the running board, the board running along the side of the grip car, 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 of 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 bell-rope 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 any one else's getting on the train on the corner at which he boarded it. That witness, remaining on the grip car 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 him, going back, and that he boarded it and rode back to the corner of Fourth and Pine streets; and that he was assisted onto the car he came from North St. Louis on and rode back to his home, arriving there about two o'clock p. m.; that the accident had occurred at ten 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's ribs fractured, and bandaged...