Caplin v. St. Louis Transit Co.

• Citation: 114 Mo. App. 256,89 S.W. 338
• Parties: CAPLIN v. ST. LOUIS TRANSIT CO.
• Decision Date: 17 October 1905
• Court: Court of Appeal of Missouri (US)

89 S.W. 338

114 Mo. App. 256

CAPLIN v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

October 17, 1905.

1. DAMAGES — MEASURE — PERSONAL INJURY — FUTURE LOSS — INSTRUCTIONS.

Where, in a personal injury action, the evidence authorizes the jury to assess present damages for future loss as a result of the injury, an instruction that the damages must be confined to the loss reasonably certain to result is proper.

2. SAME.

Where, in a personal injury case, the evidence shows that plaintiff will be wholly disabled from performing the work in the business in which he was engaged at the time of the accident, an instruction that plaintiff, if entitled to recover, is entitled to compensation for loss of time in his business which "he may hereafter lose, if any, by reason of" the injuries, is proper, for the word "may" means "shall."

3. APPEAL — REVIEW — QUESTIONS NOT RAISED BELOW.

In a personal injury action, the question whether plaintiff could recover for loss of earnings could not be reviewed in the appellate court, if not raised below, under the express provisions of Rev. St. 1899, § 864.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Barnet Caplin against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. Montague Punch, for respondent.

BLAND, P. J.

The petition alleges that defendant is a corporation engaged in operating street cars as a common carrier of passengers; that on June 4, 1903, plaintiff hailed a car, which stopped to receive him as a passenger; but, as he was in the act of boarding the car, it suddenly started forward, throwing him to the street and injuring him. After stating the various and varied bruises and injuries sustained by plaintiff, the petition continues as follows: "Plaintiff further states that said injuries are permanent, and have, since said day of June, 1903, and will in the future, wholly disable plaintiff from performing any work or labor, including that of making cloaks, in which business plaintiff was engaged on and prior to said June 4, 1903; the said plaintiff, previous to receiving said injuries, having conducted a cloak-making business in partnership with his sons. Plaintiff further states that since said injuries he has suffered, is now suffering, and will continue to suffer great pain of body and mind on account of said injuries; that he has reasonably incurred bills for medical and surgical attention and medicines in the necessary treatment of said injuries, amounting to $125, and will in the future be compelled to expend large amounts of money for the necessary treatment of said injuries aforesaid, and by reason of said injuries plaintiff has lost and will lose much time which he could have devoted to his said business. Whereby plaintiff has been damaged in the total sum of $15,000, for which amount, with costs, he prays judgment against defendant." The answer was a general denial and the following allegation of contributory negligence: "For further answer and defense, defendant says that whatever injuries plaintiff sustained were caused by his own negligence in attempting to board a moving car when the same was running at a rate of speed that made it dangerous for plaintiff, as he well knew, to attempt to board the same."

We adopt the following summary of the evidence from appellant's statement as sufficient for the discussion of the principal error assigned by appellant: "Plaintiff's evidence showed that on the 4th of June, 1903, at the proper corner of Wash and Seventh streets, in the city of St. Louis, he notified the motorman of an approaching car that he desired to take passage thereon. He was accompanied by his daughter-in-law and her little child, aged two years. The car stopped. Plaintiff put the child on the rear platform of the car, and he then attempted to board it. He had succeeded only in catching the hand hold of the car and getting one foot on the platform when the car suddenly started, jerking him a distance, and finally throwing him to the street. He described his resulting injuries as stated in the petition, and the medical experts fully corroborated him. Defendant's evidence, consisting of that of the conductor and motorman of the car, was to the effect that there were three men and a child at the crossing; that two of the men stepped on the platform, one of them, as the conductor supposed, taking the child with him, and the third man, the plaintiff, stepped back from the car as though he did not intend to take passage. Upon seeing that, the bell was given for starting the car, the car started, and plaintiff made a dash for the rear handle of the dashboard, which he succeeded in catching. The conductor's attention was attracted to plaintiff by some one on the car, and, having given to his motorman the emergency signal to stop, the car was brought to a standstill after running about a length and a half. At the time of the accident plaintiff and four of his sons were equal partners in the cloak-making business on North Eighth street, between Wash street and Franklin avenue. He worked regularly before he was injured, but from that time to the date of the trial he had not been able to work at all. His average income or earnings was $35 a week the year round. The partnership was not dissolved after the accident." The jury returned a verdict for $3,000. Defendant filed timely motions for a new trial and in arrest of judgment, which were overruled; and it has appealed to this court.

The court gave the following instruction on the measure of damages: "The court instructs the jury that, if you find for the plaintiff, you will assess his damages at such sum as you may believe from the evidence will be a reasonable compensation to him for the bodily and mental pain or suffering he has sustained and may hereafter suffer, if any, in consequence of such injuries, and for any time which you find from the evidence he has lost in his business, and which he may hereafter lose, if any, by reason of said injuries, and also for any liability for necessary medical services he may have incurred in consequence of said injuries." This court, in Schwend v. St. Louis Transit Company, 105 Mo. App. 534, 80 S. W. 40, condemned an instruction on the measure of present damages for a prospective loss which told the jury that plaintiff was entitled to recover compensation "for the injuries, pain, and anguish already suffered by her, and which she may suffer in the future from the effects of such injuries," on the ground that the instruction did not restrict the finding of present damages for such prospective loss as would reasonably result from the injury, and cited Joyce, Damages, § 244; Watson, Damages for Personal Injuries, §§ 302, 303, et seq.; 1 Sutherland, Damages (3d Ed.) § 123; Chilton v. City of St. Joseph, 143 Mo. 192, 44 S. W. 766; Russell v. Inhabitants of Town of Columbia, 74 Mo. 480, 41 Am. Rep. 325; Ross v. Kansas City, 48 Mo. App. 440; Bradley v. Chicago, etc., Co., 138 Mo., loc. cit. 301, 311, 39 S. W. 763; Kucera v. Lumber Co., 91 Wis. 637, 65 N. W. 374; and a number of other cases from other states in support. To these citations might be added a large array of both American and English cases holding that only such present damages for...