Boggess v. The Metropolitan Street Railway Company

• Citation: 23 S.W. 159,118 Mo. 328
• Parties: Boggess, Plaintiff in Error, v. The Metropolitan Street Railway Company
• Decision Date: 27 November 1893
• Court: United States State Supreme Court of Missouri

23 S.W. 159

118 Mo. 328

Boggess, Plaintiff in Error, v. The Metropolitan Street Railway Company

Supreme Court of Missouri, First Division

November 27, 1893

Error to Jackson Circuit Court. -- Hon. R. H. Field, Judge.

Affirmed.

L. H Waters and Eugene Pearson for plaintiff in error.

(1) The court erred in refusing instructions asked by plaintiff numbered 1 to 7 inclusive, and also erred in giving instructions 1 to 15 of its own motion. (2) The law presumes that plaintiff was free from negligence, and in the exercise of ordinary care at the time of the injury; there was no evidence to the contrary. Hence the court erred in giving the instruction numbered 13. Buesching v. Gaslight Co., 73 Mo. 219; Fairgrieve v. Moberly, 29 Mo.App. 141; Craighead v. Wells, 21 Mo. 404; Carlisle v Hill, 16 Ala. 398; Donovan v. Railroad, 89 Mo. 150; Huckshold v. Railroad, 90 Mo. 584. (3) The court erred in giving the instruction numbered 11. It had no application to any issue in the case and is a mere abstraction -- platitude. Fairgrieve v. Moberly, 29 Mo.App. 141; State v. Brown, 67 N.C. 442; McQuillin's Dig. 261, sec. 65; 262, sec. 83. (4) The eighth instruction is wrong; the jury had no right to assume any fact, and the court had no right to tell them that they must assume a material fact in the case. King v. King, 37 Ga. 205; Peck v. Richie, 66 Mo. 114; Chouquette v. Barada, 28 Mo. 491; Moffatt v. Conklin, 35 Mo. 453; Merritt v. Given, 34 Mo. 98. (5) The court erred in giving too many instructions; they were calculated to confuse and mislead, rather than enlighten or instruct the jury. State v. Floyd, 15 Mo. 349; Cole v. Thomas, 17 Mo. 332; Talbott v. Mearns, 21 Mo. 427; McQuillin's Dig. 264, sec. 123. (6) The court erred in giving instruction numbered 15 after the argument to the jury had begun. It is the province of the court to instruct the jury at the close of the evidence, before the argument, not thereafter. 1 General Statutes, 1889, sec. 2188. (7) Defendant was bound to so construct and maintain its pits and the coverings thereof, in said street, as to meet all the exigencies of the ordinary lawful uses thereof. Fash v. Railroad, 1 Daly, 148. (8) The damages awarded are wholly inadequate; the incurability of the injury and the necessity of going on crutches from fifty-eight years of age to death -- probably, according to mortuary tables, 15.4 years -- could not be compensated with $ 1,000. It is hardly probable that a well-organized, respectable tramp could be employed by contract to go on crutches and board himself for $ 1.50 per day, $ 547.50 per annum. Multiply that sum by the number of years of expectancy and we have a means of estimating on a basis of reason and experience, the damages the plaintiff sustained. The award of $ 1,000 damages, under such circumstances, is simply adding insult to injury. 2 Thompson on Negligence, p. 1266, sec. 58. Fairgrieve v. Moberly, 29 Mo.App. 141; Townsend v. Briggs, 26 P. 108.

Pratt, Ferry & Hagerman for defendant in error.

(1) Plaintiff having recovered substantial damages could not have been prejudiced by any ruling made bearing upon the right to recover, simply because he has recovered. Gregory v. Chambers, 78 Mo. 294; Pritchard v. Hewitt, 91 Mo. 547; Carrington v. Railroad, 6 S. Rep. 910; Donovan v. Railroad, 79 Ala. 429. (2) The damages as found by the jury were adequate. (3) The appellate court only interferes on such questions when the passion or prejudice of the jury has intervened. Fairgrieve v. Moberly, 29 Mo. 141; Gregory v. Chambers, 78 Mo. 294; Watson v. Harmon, 85 Mo. 443; Pritchard v. Hewitt, 91 Mo. 547. (4) The evidence bearing on the question of plaintiff's intoxication to diminish the damages, was admissible under the general denial in the answer. 1 Sedgwick on Damages [8 Ed.], secs. 202, 204, 214; 1 Sutherland on Damages, 237, 238; Bliss on Code Pleading, sec. 329; Cousins v. Railroad, 66 Mo. 572. The evidence having been admitted without objection, error as to it cannot be assigned by a general exception to an instruction. Mellor v. Railroad, 105 Mo. 455. (5) Instructions can be given after argument begins and even after the jury has retired. Clusky v. St. Louis, 50 Mo. 89; Dowzelot v. Rawlings, 58 Mo. 75, 78; State v. Miller, 100 Mo. 623; Willmott v. Corrigan Cons. Co., 16 S.W. 500; S. C., 106 Mo. 535, 547.

Brace J. Barclay, J., dissents to the fifth paragraph only, for reasons which he will state in a separate opinion. Barclay, J., concurring.

OPINION

Barce J. --

This is an action for damages for personal injuries in which the plaintiff obtained a verdict and judgment for $ 1,000, to reverse which he brings the case here by writ of error.

The substantial averments of the petition are that the defendant is a corporation operating a cable street railway on and along Main and other streets in the City of Kansas; that on the twenty-third of January, 1890, while the plaintiff was passing over the defendant's track on Main street, he stepped upon the covering of a pit or manhole, maintained by the defendant between its tracks for the purposes of its railway, which covering "slipped and turned and he was thereby thrown down and caused to fall into said opening and was thereby bruised, wounded and injured in his right foot and ankle," by reason of which injuries he was confined to his room and bed for two months, expended large sums of money for care and medical treatment and underwent great pain and suffering in mind and body to his damage in the sum of $ 20,000. The specific negligence charged, was that said cover was constructed to rest upon a rabbet inside of a frame, and that the defendant at the time of the accident had failed to have the same properly inspected, and had permitted dirt and other material to collect around the inside of the upper part of said frame and along and upon said rabbet by reason of which the said covering would not, and did not, rest upon said rabbet, but was then and there loose and insecure and liable to slip and turn when stepped upon by any person passing over the same.

The answer was a general denial and a plea of contributory negligence, upon which issue was joined by reply.

The evidence for the plaintiff tended to prove that the plaintiff was injured in the manner charged in the petition, and the negligence of defendant as therein charged; that the defendant by reason of his injuries was confined to his room over fifty days, suffered sharp pain in his ankle and foot at the time and ever since, took medicine to alleviate the pain and to induce sleep for four or five weeks; that some of the ligaments were torn and blood vessels injured, some ruptured -- no bones were broken -- the most serious trouble being in the ankle joint; that the injury was permanent and he would always have to use a crutch or cane.

The evidence for the defendant tended to prove that the defendant was not guilty of negligence; that the track was properly inspected; that there was no accumulation of dirt or other material as alleged, and that the cover was displaced by a heavy team passing over the same immediately before the accident, and that the injury was not serious. There was no evidence tending to prove contributory negligence, nor expense for medicine or medical attendance, nor of the value of time lost; and there was evidence tending to prove that the plaintiff attended regularly to his business as a lawyer after April 1890.

I. Upon the question of the plaintiff's right to recover, the court gave many instructions and refused several asked for the plaintiff. The action of the court in giving and refusing these instructions is assigned as error, and a large part of plaintiff's brief is devoted to the demonstration of these errors. Conceding for the sake of the argument that the court did commit such error in respect of these instructions as would require a reversal of the case if the verdict had been against the plaintiff, ought they to so operate when the verdict, despite such errors, was in his favor and for substantial damages?

The instructions now under consideration did not go to the question of damages at all, but were confined to the issues involving plaintiff's right to recover. Those issues were all found for the plaintiff. The verdict established his right to recover. How, then, is he prejudiced by those errors? The plaintiff has no right to complain that the verdict was in his favor; he does not, in fact, so complain; the whole burden of his complaint is, and can only be, that, having been so found, the jury gave him inadequate damages for his injuries, and of any error tending to produce this result he has a right to complain; but not of errors prejudicial only to his right to recover, when in fact he does recover. The appellate courts of this state are prohibited by statute from reversing the judgment of any court, except for error committed by such court materially affecting the merits of the action. Revised Statutes, 1889, sec. 2303. And this court has uniformly disregarded such errors as produce no injury. Gregory v. Chambers, 78 Mo. 294; Pritchard v. Hewitt, 91 Mo. 547, 4 S.W. 437; St. Louis v. Lanigan, 97 Mo. 175, 10 S.W. 475; Stanley v. Railroad, 100 Mo. 435; McGuire v. Nugent, 103 Mo. 161, 15 S.W. 551; Green v. St. Louis, 106 Mo. 454, 17 S.W. 496.

In Pitchard v. Hewitt, supra, we said: "The refused instructions numbered 7 and 8, asked for by the plaintiff, and the instruction given by the court for the defendant, were all upon the issue joined upon defendant's plea, that plaintiff first assaulted him, and that in resisting that assault he used no more force than was necessary to resist such assault and protect himself from great personal injury, and as that issue was found for the plaintiff by the jury, no harm resulted to...