Chapman v. Kansas City Rys. Co.

• Decision Date: 11 July 1921
• Docket Number: No. 22625.,22625.
• Citation: 233 S.W. 177
• Parties: CHAPMAN v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

233 S.W. 177

CHAPMAN v. KANSAS CITY RYS. CO.

No. 22625.

Supreme Court of Missouri, Division No. 1.

July 11, 1921.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

Action by Eugene B. Chapman against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition of remittitur.

Charles N. Sadler, of Kansas City, for appellant.

T. J. Madden, of Kansas City, for respondent.

GRAVES, J.

This is the second appeal in this case. It is here upon substantially the same facts. These facts Goode, J., carefully summarized upon the previous hearing. Chapman v. Kansas City Rys. Co., 217 S. W. 290. We refer to that opinion for the facts, but counsel for respondent say that we erred in that statement of facts when we said that the plaintiff followed the slowly moving car to the middle of Thirty-Fourth street, before be boarded it. Both parties refer to the old abstract of the record evidence, and much of the present evidence was read from that record. We shall not go to the old abstract. It suffices to say that the plaintiff in the present record says that he was at the usual stopping place for passengers to leave and to enter cars, and that as a passenger alighted from the slowly moving car, he got on the car. This, with the statement of facts by Goode, J., will suffice for a statement of the present case. This opinion must be read in connection with our previous opinion. It will be noted that we reversed the previous judgment for an error in an instruction. The present record shows that the plaintiff followed the suggestions of this court in the matter of this instruction. Such other details as may be necessary for disposing of the present appeal had best be outlined in the opinion.

I. We have been favored with a brief of 184 pages by the appellant. Of this some 32 pages are devoted to a statement of facts, and a digest of the evidence. Seventy-nine pages are devoted to the question that appellant's demurrer to the evidence should have been sustained. It is not claimed that the evidence tending to show liability, so far as the plaintiff's case is concerned, is materially different from that of the previous hearing in this court. The pleadings are the same. When here before we said:

"We dismiss the error assigned because of the court's refusal to direct a verdict for defendant, with the remark that the evidence sufficed to carry all the issues to the jury."

We see no reason to change that ruling. The principal instruction for the plaintiff is again assailed. We reversed the judgment on the previous hearing for errors in this instruction, but it has been reformed in accordance with the views that we then expressed. As appears in the present record it accords with our ruling, and that question drops out of the case. This disposes of the first 2 assignments of errors. In the brief counsel make 8 assignments, in their formal assignment of errors. The remaining 6 were not discussed when the previous hearing here was had, and hence are questions now for review.

II. The third assignment of error goes to the refusal and modification of the defendant's instructions. Defendant only requested 20 instructions, and of these the court gave 15, modified 1, and gave it as modified, and refused 4, and as to the modification of instruction 9, and the refusal of 17, 18, and 19 and 20, this assignment of error is lodged. Instruction No. 9, as modified, reads:

"The court instructs the jury that, even if plaintiff did get upon the car and his bundle was kicked or thrown therefrom, `in the absence of any agreement to stop, if you so find,' this did not require the train crew to stop the car for the purpose of permitting him to alight until it had reached the next regular stopping place, and if they failed or refused to stop the car, under such circumstances they were not guilty of any negligence, and you cannot find a verdict for plaintiff for that reason."

The clause which the court added is placed in quotations. In view of what we said at the previous hearing, this amendment was proper. 217 S. W. loc. cit. 293. The instructions refused are short, and we copy them, thus:

"D. 17. The court instructs the jury that all evidence of injury to sexual organs of plaintiff is withdrawn from your consideration, and you will not consider same in arriving at your verdict.

"D. 18. The court instructs the jury that all evidence of bulging or protrusion of upper part of abdomen and stomach is withdrawn from your consideration, and you will not consider same in arriving at your verdict.

"D. 19. The court instructs the jury that all evidence of impotency is withdrawn from your consideration, and you will not consider same in arriving at your verdict.

"D. 20. The court instructs the jury that all evidence of high temperature and high pulse rate is withdrawn from your consideration, and you will not consider same in arriving at your verdict herein.

"(Refused.)"

The propriety of these instructions depends upon the scope of the pleadings. Instructions should not go beyond the pleadings, although the evidence may take a broad scope. The case on trial and for determination is that made by the pleadings; so that these instructions must he weighed in the light of the pleadings. The injuries alleged are thus stated in the petition:

"His skull, head, including face, jaws, mouth, and teeth, neck, back, and spine were wrenched, bruised, and injured, and in said fall he received an injury to and displacement, impairment, and disease of his abdomen and pelvis, as well as the sexual, abdominal, and pelvic organs, and all parts surrounding and adjacent thereto; the walls of the abdomen and pelvis were broken and ruptured, and hernia has resulted therefrom, which will require surgical treatment in the future; he received other internal pelvic and abdominal injuries, but the exact nature and extent of the same he is unable to describe, other than that he experiences great discomfort, fever, aches, and pain; his right hand and the fingers thereof were injured, sprained, and broken, and the use of said hand has been greatly impaired; his left knee was bruised and injured; he was injured in his brain and mind and spinal cord and nerves, and his nervous system was shocked, injured, and diseased as a result thereof, and he still suffers mental worry and disturbed rest; his kidneys were injured, and he still suffers discomfort, pain, and disease resulting from same. Plaintiff was bruised and injured in and on all parts of his body, organs, and limbs, and from all of said injuries, which are permanent and progressive in their nature and character, he has been made sick, sore, and disabled, caused to suffer great bodily pain and mental anguish, he is unable to stand erect, his general health has been impaired; he has been rendered sexually impotent, and his entire body weakened and diseased. At present and since said injuries plaintiff has suffered from a high pulse, increased temperature, headaches, stomach sickness, and general physical disability, and plaintiff has been unable to follow any gainful occupation, has lost time from his work and business in the way of salary and earnings, has expended money for medical and surgical attention, and, owing to the nature, character and extent of said injuries, plaintiff will continue to suffer in the future and be permanently crippled and disabled, and prevented from following any occupation, and will be compelled to expend and incur obligations for medicines and medical and surgical attendance and treatment in endeavoring to effect a cure of said injuries."

These charges of injuries covered the body and most of the organs thereof, as the snow of winter covers a fallen tree. The evidence sought to be withdrawn by these instructions was in direct support of some injury specifically pleaded. We admire fighting lawyers, but, in view of the pleadings in this case, we should not have been called upon to pass upon the propriety of these instructions, in view of the pleadings as to injuries suffered. The trial court was right in refusing each and all of them. He had to but glance at the petition.

III. The fourth assignment of error goes to the admission of improper evidence, and we are cited to 44 pages of the record, as well as parts of the brief, for the facts. Taking the first complaint made in the brief, it is said that there was error in permitting William C. Davisson to testify to the custom of giving signals where the car did not actually stop for the passengers to alight from and the passengers to board a slowly moving car. Davisson had served for many years as a conductor on this railway system, and at the time of the accident was running over the line upon which plaintiff was injured. The petition thus specifically pleads a custom or usual course of conduct by defendant:

"It was usual and customary at the time hereinafter mentioned for defendants and their servants to slow down their cars to discharge and receive passengers and to receive and discharge them while cars were in...