Bible v. St. Louis & S. F. R. Co.

• Decision Date: 03 March 1913
• Citation: 169 Mo. App. 519,154 S.W. 883
• Court: Missouri Court of Appeals
• Parties: BIBLE v. ST. LOUIS & S. F. R. CO.

154 S.W. 883

169 Mo. App. 519

BIBLE v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

March 3, 1913.

Rehearing Denied March 27, 1913.

1. DAMAGES (§ 210) — PLEADING — INSTRUCTIONS — DEFINITE AMOUNT.

A petition in a personal injury action, alleging that plaintiff was permanently injured, and that he had been getting "about" $700 per annum, but was in line of promotion for "higher wages," did not so definitely fix the value of the time and the earnings lost as to require an instruction to contain a limitation of the amount to be awarded.

2. MASTER AND SERVANT (§ 219) — PERSONAL INJURIES — ASSUMPTION OF RISK — NEGLIGENCE OF MASTER.

In a servant's action for personal injuries by a rope breaking on which he was pulling while drawing timbers onto a car, causing him to fall off, the plaintiff did not assume the risk, unless the rope, which had been used for a year and had become rotten and worn, was so glaringly defective that a prudent person would not use it, it being the continuous duty of the master, and not the servant, to inspect the rope and exercise reasonable care in furnishing a suitable one; a servant not assuming dangers arising from a master's negligence.

3. APPEAL AND ERROR (§ 1003) — REVIEW — WEIGHT OF EVIDENCE — PERMANENT INJURY.

Although the evidence is stronger against plaintiff's contention that he was permanently injured than for it, a verdict of the jury for plaintiff thereon is conclusive on the appellate court.

4. DAMAGES (§ 132) — EXCESSIVE DAMAGES — PERSONAL INJURIES.

A verdict of $5,000 for personal injury, where the plaintiff was made a nervous and physical wreck, beyond hope of recovery, and totally disabled from making a living, was not excessive.

Appeal from Circuit Court, Lawrence County; Carr McNatt, Judge.

Action by J. P. Bible against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Evans, of St. Louis, and Mann, Todd & Mann, of Springfield, for appellant. Sizer & Kemp, of Monett, for respondent.

STURGIS, J.

The plaintiff sues for personal injuries occasioned by falling from one of defendant's flat cars while he was assisting in loading some bridge timbers on the same. He was one of a crew engaged in building and repairing bridges along the defendant railroad. The crew was supplied with cars, tools, ropes, and other equipment, and moved from place to place as the work demanded. On this particular occasion the crew were preparing to move to another place, and plaintiff and several other workmen were directed by the foreman to load some rather large and heavy bridge timbers, about 32 feet long, upon a flat car, preparatory to moving the same. These men were under the immediate and direct control of a boss or foreman, who directed the work. The bridge timbers were loaded on the flat car by means of ropes and skids. Two or more ropes were used for this purpose, and one end of each was fastened to a post on the far side of the car, and, after being let down and placed under and around the heavy timbers, the men on top of the car, by pulling on the other end of the ropes, drew the timbers upon the skids to the top of the car. After the car had been partially loaded in this manner, and while plaintiff and another man, standing on the timbers already loaded, were thus pulling on one of the ropes raising the bridge timbers to the top of the car, the rope broke, causing them to fall backward off the car, resulting in the injuries for which plaintiff brings this action.

The plaintiff alleges that his spine was fractured; that he was injured internally, and became a nervous wreck; "that said injuries were permanent in their nature and extent, and plaintiff will be a cripple the balance of his life, and will suffer great pain and anguish of mind and body as long as he lives; that on account of said injuries his life expectancy has been shortened, and he has totally lost all of his earnings since the date of said injuries." The jury awarded plaintiff $5,000 for these injuries, which verdict was approved by the trial court and judgment entered accordingly.

Three assignments of error are made and relied on by defendant in this court: (1) the instruction given for plaintiff on the measure of damages; (2) the refusal to sustain the demurrer to the evidence; (3) that the verdict is excessive.

The instruction on the measure of damages is assailed because of not following the petition in limiting the amount of damages to be allowed for loss of time and earnings. On this point the petition alleges: "That prior to said injuries plaintiff was an able-bodied man, strong and vigorous and healthy; that he was earning about $700 per annum, and was in line of promotion for higher wages; that all of said earnings had been lost to plaintiff, and on account of the permanent nature of said injuries plaintiff will be a cripple the balance of his life, and will lose all of his earnings in the future, as his earning capacity has been totally destroyed." The instruction complained of, after specifying other elements of damages to be considered by the jury, says: "You should further take into consideration all loss of wages, if any, which you may find from the evidence that plaintiff has already sustained by reason of such injuries, if any and you should take into account all loss of earnings, if any, that you may find from the evidence plaintiff will sustain in the future as a direct result of said injuries, if any."

We think this instruction is not erroneous under the pleadings and facts in this case. It will be conceded, we think, that, where the petition does not limit the loss of time to a definite amount, then the instructions need not do so. Where the petition states generally that the plaintiff has lost his time and earnings, and will continue to do so, by reason of the injuries, without fixing or limiting the value and amount of such loss, then the instructions may also leave such amount unlimited and merely tell the jury to take such loss of time and earnings into consideration in arriving at the total damage. An approved instruction along this line will be found in Reynolds v. Transit Co., 189 Mo. 408, 419, 88 S. W. 50, 107 Am. St. Rep. 360. See, also, Dean v. Wabash Railroad Co., 229 Mo. 425, 455, 129 S. W. 953.

On the other hand, where the petition fixes and limits the amount of damages for loss of time and earnings, either past or future, then the instructions must limit the amount to be awarded by the jury for such loss of time and earnings to an amount not to exceed that so fixed and limited in the petition. Smoot v. Kansas City, 194 Mo. 513, 92 S. W. 363; Radtke v. Basket & Box Co., 229 Mo. 1, 129 S. W. 508; Heinz v. Railways Co., 143 Mo. App. 38, 122 S. W. 346; Tinkle v. Railroad, 212 Mo. 445, 471, 110 S. W. 1086. The reason given for this rule is stated in Radtke v. Basket & Box Co., 229 Mo. 1, 19, 129 S. W. 508, 513, to be that "defendant had a right to rely upon the admission of plaintiff that his loss in this respect had been and would be only $9 per week, and it was the duty of the court to so limit the right of recovery in this regard."

In Lindsay v. Kansas City, 195 Mo. 166, 180, 93 S. W. 273, the petition alleges that plaintiff has lost one month's time, amounting to $30, and in the instructions given the amount was not so limited, but permitted the jury to find damages in addition to the $30 which the plaintiff had already suffered. The court approved the instructions, on the ground that: "The allegations of the petition referred to the loss of her means of livelihood from the time of bringing the action, in addition to that which she had already lost. * * * The court properly submitted to the jury the damages she had suffered up to the time of the trial, as well as those which she would suffer on account of her injuries in the future. We do not think the instruction broadens the recovery beyond that which was prayed for in the petition."

The fact that the plaintiff, in his petition, states the character of his business or employment and his earning capacity therein, in connection with the allegations as to loss of time and future earnings, as was done in the case of Dean v. Wabash Railroad Co., 229 Mo. 425, 437, 129 S. W. 953, does not necessitate an instruction limiting his recovery to a definite amount. In Heinz v. Railways Co., 143 Mo. App. 38, 122 S. W. 346, the court held that in that case the petition fixed the amount of damages for loss of time, and the same limitations should be made in the instructions, and distinguishes that case from other cases in this manner: "The decisions of Tandy v. Transit Co., 178 Mo. 240 , and Lindsay v. Kansas City, 195 Mo. 167 , relied on by plaintiff, are not in point. In those cases there was testimony tending to prove the injured party would sustain loss of time in the future — that is, after the filing of the petition and even after trial — and for this reason it was held instructions on the measure of damages which did not limit recovery to the loss of time alleged in the petition were not erroneous, since the allegation covered only time lost up to the day the petition was filed. But in the present case whatever time plaintiff lost, and whatever expense he was put to for treatment by a physician, had all been lost and incurred prior to the filing of the suit."

That was a proper distinction between the case then under consideration and the cases there referred to, but it is not to be inferred that the rule that the instructions must follow the petition in limiting damages for lost time or earnings does not apply in any case where the loss of time is not completed at the time of filing the petition; that is, in cases of permanent injury. Damages for loss of time or earnings accruing after the petition is filed, and after trial even, may be so limited by the petition that the instructions must likewise limit the amount of recovery. Thus, in ...