Briscoe v. Metropolitan St. Ry. Co.

• Decision Date: 01 July 1909
• Citation: 120 S.W. 1162,222 Mo. 104
• Parties: JOHN H. BRISCOE v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

120 S.W. 1162

222 Mo. 104

JOHN H. BRISCOE v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

July 1, 1909

Appeal from Jackson Circuit Court. -- Hon. Jas. E. Goodrich, Judge.

Affirmed on condition.

John H Lucas and Halbert H. McCluer for appellant.

(1) The court erred in not instructing the jury to find the issues in favor of defendant. Hoffman v. Railroad, 45 A.D 586; Allen v. Railroad, 183 Mo. 433; Yarnell v Railroad, 113 Mo. 580; Keller v. Railroad, 149 Pa. St. 65; LeBarron v. East Bottom Ferry Co., 11 Allen (Mass.) 312; Farley v. Railroad, 132 Pa. St. 58; Hayman v. Railroad, 118 Pa. St. 508; Fern v. West Jersey Ferry Co., 143 Pa. St. 122; Orcutt v. Century Bldg. Co., 201 Mo. 424; McGrath v. Railroad, 197 Mo. 97; Roscoe v. Railroad, 202 Mo. 588. (2) The court erred in giving each of the following instructions, at the request of plaintiff, viz.: 1, 2, 3, 4, 5, 6, 7 and 8. As to No. 4: Authorities under point one: Schaefer v. Railroad, 128 Mo. 71. As to No. 7: Henry v. Railroad, 113 Mo. 534; Feary v. Railroad, 162 Mo. 99; Maxey v. Railroad, 95 Mo.App. 309. (3) The court erred in admitting the following evidence over defendant's objections, viz.: 1st. Admitting any evidence over defendant's objections for the reason that the petition did not set forth facts sufficient to entitle him to a recovery. Allen v. Railroad, 183 Mo. 433. 2d. Evidence in relation to repairs after the accident. Alcorn v. Railroad, 108 Mo. 90; Hipsley v. Co., 88 Mo. 348; Brennan v. St. Louis, 92 Mo. 482; Standard Milling Co. v. Railroad, 122 Mo. 278. 3d. Evidence of inability to sleep. Coontz v. Railroad, 115 Mo. 674; Thompson v. Railroad, 111 Mo.App. 474. 4th. Evidence as to loss of memory. Thompson v. Railroad, 111 Mo.App. 474. 5th. Evidence of Dr. Freymann as to what caused the injury, and also the evidence of the same witness as to the effects of the injury. Glasgow v. Railroad, 191 Mo. 347. (4) The verdict is excessive and should not be permitted to stand.

T. B. Buckner, T. J. Madden and Bird & Pope for respondent.

(1) This case was brought and tried on the theory that plaintiff was a passenger and was injured through something unusual in the ordinary operation of the car which the law called upon defendant to explain. The charge of negligence was that the "car was caused or permitted to come to an unusually abrupt, violent and unexpected stop," whereby plaintiff was injured. This charge was sustained by the evidence, and was not denied by defendant's witnesses. No witness for defendant attempted to account for the sudden stopping of the car, but all of them swore that they did not know what the cause was. Redmon v. Railroad, 185 Mo. 1. When the relationship of carrier and passenger was established, and the abrupt stop and consequent injury to plaintiff was shown, "plaintiff made out his prima-facie case of negligence against defendant and the burden was cast upon defendant of showing that the accident was not the result of that want of care and vigilance which the law makes it obligatory on the defendant to bestow." This is the well-settled law of this State. O'Gara v. Railroad, 204 Mo. 724; Logan v. Railroad, 183 Mo. 605; Magrane v. Railroad, 183 Mo. 119; Malloy v. Railroad, 173 Mo. 75; Holland v. Railroad, 105 Mo.App. 117; Latimer v. Railroad, 126 Mo.App. 70; McRae v. Railroad, 125 Mo.App. 562. The court cannot say, as a matter of law, that the testimony of the defense is true. Gannon v. Gas Light Co., 145 Mo. 516; Minster v. Railroad, 53 Mo.App. 282; Hipsley v. Railroad, 88 Mo. 353; Clark v. Railroad, 127 Mo. 197; Wood v. Railroad, 181 Mo. 444; O'Gara v. Railroad, 204 Mo. 732; Holland v. Railroad, 105 Mo.App. 123. (2) There was no error in permitting witness Bonnot to testify to the sawing off of the plate by the trackmen of the defendant. It was immediately after the wreck, and was evidence of the condition of the cable conduit at the time of the wreck. Logan v. Railroad, 183 Mo. 600; Gutridge v. Railroad, 105 Mo. 529; Weldon v. Railroad, 93 Mo.App. 676; Woods v. Railroad, 51 Mo.App. 503. This evidence was not offered to prove previous negligence, but to show a continuing condition, and explain the cause of the sudden stopping of the car. No objection was made by counsel on the ground that repairs made after the wreck were not admissible as evidence of negligence of defendant, and consequently no such objection can be made now. This testimony might have been proper to show that defendant owned or operated the track and line. Brennan v. St. Louis, 92 Mo. 482; Woods v. Railroad, 51 Mo.App. 500. (3) The verdict was for $ 5,000. It was unanimous and was approved by the trial court. We think that it was moderate. The last trial was nearly five years after the injury and the testimony of the physician appointed by the court showed plaintiff was in very bad condition, and he was getting worse. He received a brain injury when he was thrown down in the car. He was in bed for several weeks, and his fever ran up to 102 and 103, and his pulse to 120, 125, 130, and his pulse was fine and wiry. This indicated a serious brain injury. He was delirious most of the time while he was confined to his bed. After he was able to get around he was an entirely changed man, broken in health, without strength, energy or ambition. He suffered continuously from a grinding pain in his head, and has never been able to do the work or earn the money that he formerly did. His walk was slow and sluggish, and he was not right mentally.

OPINION

GRAVES, J.

Action for personal injuries. Verdict and judgment for $ 5,000 in favor of plaintiff, from which defendant appeals.

This case at one time reached the Kansas City Court of Appeals, by which, for errors, it was reversed and remanded -- 118 Mo.App. 668, 95 S.W. 276. Thereafter an amended petition was filed, upon which the trial involved in this appeal was had. The material portions of this amended petition, omitting formal portions and charges as to the character of the injuries, are:

"That on or about February 3, 1902, and at about the hour of 4:20 o'clock p. m. of said day, plaintiff was a passenger upon one of the west-bound cars of said defendant on said Fifteenth Street line and while he was in the act of taking a seat in the coach of said car and while said car was moving over the tracks of the Kansas City Belt Railway Company's crossing, or what is known as the Belt Line crossing, said car came to an unusually abrupt, violent and unexpected stop and by reason thereof plaintiff was thrown with great force and violence against the stove in said car and to the floor of said car and was thereby seriously injured. . . .

"That said injuries were caused through the carelessness and negligence of said defendant, its agents, servants or employees, in that said car was caused or permitted to come to an unusually abrupt, violent and unexpected stop or collision on or near the Kansas City Belt Line crossing whereby plaintiff was suddenly and violently thrown against the stove and upon the floor of said car."

Answer was a general denial and plea of contributory negligence. Reply, general denial.

The injury sued for in this case occurred February 3, 1902. Plaintiff, at the time, was assistant superintendent of the Colonial Security Company, as well as a solicitor for the same. Such company seems to have been of a questionable character as a business proposition for the investors in its contracts or bonds. Plaintiff was earning about $ 35 per week in this dual capacity. On the evening of February 3, 1902, at about four o'clock, the plaintiff took passage upon one of the defendant's cable trains going west on its Fifteenth Street line. He got on the train at Cleveland avenue to the east of the point where defendant's street car tracks crossed the tracks of the Belt Line Railway Company. From Cleveland avenue to the crossing of the tracks is about a block and a half. Plaintiff says that when he got on the platform of the car he had trouble in getting the door of the car to open. That the car was almost stopped just before it reached the Belt Line tracks, but started up again at the full speed of the cable. That after he got into the car he started toward the stove to get a seat, when all at once the car came to a sudden and violent stop, by which he was violently thrown against the stove and knocked thereby back to the floor of the car. From this fall he received the injuries sued for herein, which will be noted more in detail later. Plaintiff says that the sudden stop of the car was so violent as to break out all the window lights. He also says that one Peeples was standing on the platform of the car. This witness described the movement of the car in this language:

"Q. Where did you get on the car? A. I got on the car on the east side of the track the car stopped on -- the east side of the track right where I was standing.

"Q. Where was the front end of the car when it stopped on the east side of the track with reference to the Belt Line tracks? A. It was right about the first rail of the Belt Line tracks, near the east side as near as I can remember.

"Q. What kind of a stop was made there when you got on -- describe it? A. Well, I don't know about that -- they stopped is all I know -- pulled up there and stopped. . . . This time they stopped and I stepped on and they moved about twenty feet, pretty rapid gait and stopped dead still.

"Q. That was the second stop? A. Yes, sir.

"Q. Where was the second stop? A. That was right in the center of the tracks -- the car was right -- set over both tracks.

"Q. Where was the front end of the car with reference to those tracks at the second stop? A. That was over the second track -- the west track.

"Q. Now, describe that second stop as...