Chadwick v. St. Louis Transit Co.

• Citation: 93 S.W. 798,195 Mo. 517
• Parties: ESTELLE CHADWICK v. ST. LOUIS TRANSIT COMPANY, Appellant
• Decision Date: 30 March 1906
• Court: United States State Supreme Court of Missouri

93 S.W. 798

195 Mo. 517

ESTELLE CHADWICK v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, Division One

March 30, 1906

Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.

Affirmed.

Boyle & Priest, Geo. W. Easley and Robert E. Maloney for appellant.

(1) The demurrers to plaintiff's evidence and to all the evidence should have been sustained. (a) Because she failed to prove any substantial negligence whatever. (b) Because she failed to prove the allegations of negligence contained in her petition. Godfrey v. Railroad, 107 Mo.App. 193; Edwards v. Ins. Co., 100 Mo.App. 712; Hook v Railroad, 162 Mo. 569; Hyde v. Railroad, 110 Mo. 272; Spiro v. Railroad, 102 Mo.App. 250; Timms v. Railroad, 66 N.E. 797; Railroad v Osborn, 63 N.E. 604; Burnes v. Railroad, 66 N.E. 418; Railroad v. Lohe, 67 N.E. 161; Francisco v. Railroad, 78 Hun 13; Railroad v. Clowes, 24 S.E. 833. (2) The damages awarded by the jury are inordinately excessive, and out of all proportion to what plaintiff really sustained, and the verdict bears the impress of passion and prejudice on its face. Stolze v. Railroad, 87 S.W. 517; Sawyer v. Railroad, 37 Mo. 265; Kaeltz v. Relckman, 46 Mo. 320; Stoltzell v. Swearinger, 90 Mo.App. 594; Doty v. Steinberg, 25 Mo.App. 328; Sheedy v. Press Brick Co., 25 Mo.App. 527; Reynolds v. Railroad, 189 Mo. 408. (3) The court committed reversible error in giving to the jury, over defendant's objection, plaintiff's instruction 1. (a) Because said instruction authorizes a recovery for plaintiff if they find that defendant "caused, suffered and permitted said car to run into and strike the curve on the defendant's railroad, mentioned in the evidence, with sudden, violent and unusual force," when neither sudden, violent, unusual nor forceful movements of an interurban electric car in rounding a curve constitutes negligence. Railroad v. Clowes, 24 S.E. 833. (b) It is further erroneous in that it authorizes the jury to find a verdict for the plaintiff, if they believe from the evidence that defendant's car was "carelessly and negligently" permitted to run into the curve, etc., without stating what act or acts were negligent or what constituted negligence. Duerst v. Railroad, 163 Mo. 624; Allen v. Railroad, 183 Mo. 435. (c) It is further erroneous in that it permits plaintiff to recover if the jury find that the car ran into and struck the curve with "sudden, violent and unusual force," whereas plaintiff's allegations of negligence in her petition are that the defendant caused said car to enter into the curve "at a rapid, excessive and dangerous rate of speed." In other words, it permits plaintiff to sue on one cause of action and recover on another. Railroad v. Clowes, 24 S.E. 836.

Lyon & Swarts for respondent.

(1) The demurrers to plaintiff's evidence and to all the evidence were properly overruled. Redmon v. Railroad, 185 Mo. 1; Magrane v. Railroad, 183 Mo. 119; Gidionsen v. Railroad, 129 Mo. 392; Dougherty v. Railroad, 81 Mo. 325; Ilges v. Railroad, 102 Mo.App. 529; Dixey v. Railroad, 180 Pa. 401; Clow v. Railroad, 154 Pa. 410; Railroad v. Thalheimer, 37 A. 132; Samuel v. Railroad, 124 Cal. 294; Bassett v. Railroad, 65 P. 470; Lavis v. Railroad, 54 Ill.App. 636; Halverson v. Seattle Electric Co., 35 Wash. 600. (2) Plaintiff's instruction 1 was properly given, and was more favorable to the defendant than it should have been. Authorities above cited. (3) The verdict is not excessive. Wood v. Railroad, 181 Mo. 433; O'Neill v. Kansas City, 178 Mo. 91; Luckel v. Century Bldg. Co., 177 Mo. 608; Barr v. City of Kansas, 121 Mo. 22; Hanlon v. Railroad, 104 Mo. 381.

OPINION

BRACE, P. J.

This is an appeal by the defendant from a judgment of the St. Louis City Circuit Court in favor of the plaintiff for the sum of $ 5,500 for personal injuries.

Plaintiff's cause of action, as stated in the petition, is as follows:

"For her cause of action herein the plaintiff states that on the twenty-first day of August, 1903, at night, she entered and was received as a passenger on a west-bound car of the defendant at Garrison avenue and Olive street on its said line of railroad in the said city of St. Louis, for the purpose of being carried and transported as such passenger to her destination at Creve Coeur on the defendant's said line of railroad in the said county of St. Louis, and that the defendant thereby promised and agreed, and it was the duty of the defendant, to carry and transport the plaintiff well and safely to her said destination; that while the plaintiff was a passenger on said car as aforesaid the defendant, and its agents and servants in charge of said car, carelessly and negligently caused, suffered and permitted said car to enter and run into a curve on the defendant's said line of railroad, being the first west-ward curve for west-bound cars on the defendant's said line of railroad north of Delmar avenue or Bonhomme road in the said county of St. Louis, at a rapid, excessive and dangerous rate of speed, and to strike said curve with sudden, violent and unusual force, whereby the plaintiff was thrown from her seat in said car to the ground with great force and violence, her head, body and limbs were scratched and bruised, her pelvic organs were injured, her nervous system was shocked and seriously impaired, and she was otherwise internally and greatly injured; that by reason of her injuries received as aforesaid the plaintiff has suffered, and will continue to suffer, great pain in mind and body, has lost, and will continue to lose, the earnings of her labor, has been compelled to expend, and has expended, large sums of money for medical treatment and medicines, is permanently injured, and has been actually damaged in the sum of fifteen thousand dollars."

The answer was a general denial.

At the close of the plaintiff's evidence the defendant demurred thereto, and its demurrer was overruled. A like demurrer was interposed at the close of all the evidence and overruled.

The main issue in the case was submitted to the jury on the following instructions:

For Plaintiff:

"1. If the jury find from the evidence that on the 21st day of August, 1903, the defendant was a carrier of passengers for hire, and used and operated the railroad and car mentioned in the evidence for such purpose, and if the jury further find from the evidence that on said day the defendant's agents and servants in charge of said car received the plaintiff as a passenger thereon; and if the jury further find from the evidence that while the plaintiff was being carried as such passenger on said car, the defendant's agents and servants in charge of said car, carelessly and negligently caused, suffered and permitted said car to run into and strike the curve on the defendant's railroad, mentioned in the evidence, with sudden, violent and unusual force, and that the plaintiff was thereby thrown from said car upon the ground and was injured; and if the jury further find from the evidence that the defendant's agents and servants in charge of said car could, by the exercise of that degree of care, prudence and caution which very careful and prudent persons would use and exercise in a like business and under like circumstances, have prevented said car from so running into and striking said curve, and failed to do so, and if the jury further find from the evidence that the plaintiff was exercising that degree of care which would be exercised by persons of ordinary prudence under the same or similar circumstances, then the verdict of the jury must be in favor of the plaintiff."

For Defendant:

"1. The jurors are instructed that negligence cannot be presumed, but must be proved, and the burden of proof is upon the plaintiff to prove by the preponderance or greater weight of the evidence that her injuries, if you believe she was injured, were the result of the negligence alleged in plaintiff's petition, to-wit: That while the plaintiff was a passenger on one of defendant's cars the defendant's agents and servants in charge of said car, carelessly and negligently caused, suffered and permitted said car to enter and run into a curve on the defendant's said line of railroad, being the first westward curve for west-bound cars on the defendant's said line of railroad north of Delmar avenue on Bonhomme road in the said county of St. Louis, at a rapid, excessive and dangerous rate of speed, and to strike said curve with sudden, violent and unusual force, whereby plaintiff was thrown from her seat in said car to the ground. In considering the question as to whether the defendant was negligent, you are confined to the specific charges thus made, and unless you find that the defendant was negligent in this particular respect your verdict will be for the defendant, even though you may believe from the evidence the defendant may have been negligent in some other respect."

The verdict was for the plaintiff for $ 5,500.

The errors assigned for reversal of the judgment are: the overruling of the demurrers to the evidence, the giving of instruction numbered 1 for the plaintiff, and that the damages are excessive.

The facts disclosed by the evidence for the plaintiff, briefly stated, are as follows:

The plaintiff, at the time she was injured, was a young woman about twenty-one years of age, in good health, and in the employ of a dry goods establishment, earning ten dollars a week. About eight o'clock on the evening of the 21st of August, 1903, she, in company with her mother, two siste...