Brohammer v. Lager

• Citation: 194 S.W. 1072
• Decision Date: 08 May 1917
• Docket Number: No. 14627.,14627.
• Parties: BROHAMMER v. LAGER.
• Court: Court of Appeal of Missouri (US)

194 S.W. 1072

BROHAMMER v. LAGER.

No. 14627.

St. Louis Court of Appeals. Missouri.

Argued and Submitted April 4, 1917.

Opinion Filed May 8, 1917.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

"Not to be officially published."

Action by Mary Elizabeth Brohammer against Ida C. Lager. Judgment for plaintiff, and defendant appeals. Affirmed.

Anthony Hochdoerfer, of St. Louis, for appellant. Frank H. Fisse and Ben L. Shifrin, both of St. Louis, for respondent.

REYNOLDS, P. J.

Action for personal injuries sustained by plaintiff. Plaintiff's petition alleges that she lived with her grandmother, a tenant of the defendant, the grandmother renting two rooms on the second floor of the building. The petition further alleges that the porches and stairways by which the rooms were reached were used in common by plaintiff, her grandmother, and other tenants of the building in common, and were in the possession and control of the defendant. In front of the rooms occupied by plaintiff and her grandmother there was a wooden porch, inclosed with a wooden railing. It is averred that on the day of the accident, and for a long time prior thereto, the railing of this porch was out of repair in that it was not properly fastened and braced and had become loose and rotten and that the entire railing was shaky, loose, defective and in a dangerous condition, of which fact defendant was or could have been aware; that on May 25th, 1912, while plaintiff was using the porch and in the exercise of due care, the railing suddenly gave way, causing plaintiff to be precipitated to the ground, a distance of some 15 feet, thereby sustaining serious and permanent internal and external injuries.

The answer was a general denial, coupled with a plea of contributory negligence. There was a verdict for the plaintiff in the sum of $3,500. Defendant interposing a motion for new trial, which, among other grounds, attacked the verdict as excessive, and evidencing passion and prejudice, the trial court announced that it would sustain the motion unless plaintiff remitted $3,000. Remittitur being duly made of that amount the motion was overruled and judgment entered in favor of plaintiff for $500. From this the defendant has duly appealed to our court.

The assignments of error are that the instruction given at the request of plaintiff on the measure of damages is erroneous; that the verdict of the jury evidenced prejudice and passion against defendant; that the court erred in entering judgment for $500 after the remittitur of $3,000, and erred in not giving a peremptory instruction to find for the defendant. These are substantially the errors assigned.

It is argued that the court erred in giving the instruction for plaintiff as to the measure of damages because there was no evidence of any permanent injury upon which to base the finding of any damages in the future, and because the elements as to damage in the future are not specified, and the instruction give the jury a roving commission.

Referring to this instruction, we find nothing in it as to allowing compensation for permanent injuries. The court told the jury that if they found for plaintiff, in estimating her damages they "will take into consideration not only the physical injury inflicted, the loss of time, the bodily pain and mental anguish endured and suffered, if any, and her inability or partial inability, by reason of said injuries, to perform her ordinary avocation in life, but may also allow her such damages as it appears from the evidence as to the nature and extent of her injuries will reasonably result to her therefrom in the future," not exceeding the sum prayed for. Very clearly this instruction does not authorize a recovery of damages for permanent injuries. It contemplates an allowance of damages for such injuries as "will reasonably result to her therefrom in the future." That is far from being an instruction to take into consideration the element of permanent injuries.

We think there was sufficient evidence in the case as to the pain and suffering and injuries of plaintiff to warrant this instruction.

It was in evidence that prior to the accident plaintiff, then a young girl of about 15 years of age, was stout, healthy, working steadily in a factory. She was confined to a hospital for a few days immediately...