Chouquette v. Southern Electric R. Co.

• Decision Date: 14 November 1899
• Citation: 152 Mo. 257,53 S.W. 897
• Court: Missouri Supreme Court
• Parties: CHOUQUETTE v. SOUTHERN ELECTRIC R. CO.

53 S.W. 897

152 Mo. 257

CHOUQUETTE v. SOUTHERN ELECTRIC R. CO.

Supreme Court of Missouri, Division No. 1.

November 14, 1899.

REVIEW — VARIANCE IN PLEADING AND PROOF — STREET RAILROADS — ORDINANCE LIMITING SPEED OF CARS — ACCEPTANCE — ACTION FOR PERSONAL INJURIES — NEW TRIAL — DUTY OF TRIAL COURT — DISCRETION — REVIEW — FINDING FOR DEFENDANT.

1. Error cannot be predicated on a variance where the party complaining thereof failed to object or except to it during the trial, under Rev. St. 1889, § 2096, providing that, when a material variance shall be alleged and proved, the pleadings may be amended on just terms.

2. A street-railroad company is bound by the terms of an ordinance granting its franchise rights limiting the speed of its cars.

3. It is the duty of the trial court to grant a new trial when the verdict is arbitrary, or manifestly and clearly wrong, or when it appears to be the result of passion, prejudice, or misconduct of the jury.

4. Where the evidence in an action for personal injuries showed that plaintiff's injuries were severe, and that she suffered much therefrom, the court properly set aside a verdict for nominal damages, and awarded her a new trial.

5. The discretion of the trial court in setting aside a verdict will not be interfered with unless unreasonably exercised.

6. Where, under the pleadings and the evidence, plaintiff is entitled to substantial damages, a verdict for nominal damages cannot be regarded as a finding in defendant's favor.

Appeal from St. Louis circuit court; Horatio D. Wood, Judge.

Action by Julia B. Chouquette against the Southern Electric Railroad Company. From an order setting aside a verdict and judgment in favor of plaintiff for nominal damages and granting a new trial, defendant appeals. Affirmed.

Lubke & Muench, for appellant. A. R. Taylor, for respondent.

ROBINSON, J.

This action was instituted in the St. Louis circuit court to recover damages for personal injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant, a corporation organized under the laws of Missouri, engaged in operating an electric street railroad in the city of St. Louis. The specific negligence of defendant by which the injury in question is alleged to have been caused is stated in the petition to have consisted: First, in that the wire used by defendant to communicate the electric current to the wheels of the car for the propulsion of the car was defective, old, patched, and of inferior wire, small in size, and was inadequate for the service, and defective in tensile strength, and had frequently broken before, and that defendant negligently refrained from providing sufficient wire of proper tensile strength, etc.; second, that the car was, at the time of plaintiff's injuries, being negligently run at the place of the accident, at a reckless rate of speed, in violation of the ordinances of the city of St. Louis conferring upon defendant its franchise, whereby the defendant was limited to a speed at which it was authorized to run, at the place where the accident occurred, of 15 miles an hour. The petition then charges, in substance, that on May 30, 1896, plaintiff was received as a passenger on defendant's car; that, while proceeding on her way as such passenger, at a point in said city near Bates street, the wire so used by defendant to convey the electric current to the wheels of the car broke, and fell upon the car in which the plaintiff was riding, thereby communicating an electric shock to the passengers, including the plaintiff, surrounding the car with a sheet of fire, and filling the air with hissing and strange noises; that the passengers became greatly frightened at said fire and noises, and crowded and pushed each other to get out of the car, and thus escape the danger which encompassed them; that in the attempt of the passengers to so escape from the car the plaintiff was violently thrown upon the ground, thereby injuring, wounding, and bruising plaintiff; that she sustained a severe shock to her body from the electric current which came through the car, and by her fall received contusions on her arms and body, and compound fracture of her skull, concussion of the brain, and an injury to her spinal column; that by reason of said injuries she has suffered, and still suffers, great mental anguish and physical pain; that she has been compelled to expend a large sum of money for medical attention, etc.; that she has been permanently disabled and rendered incapable of following her vocation, to wit, that of housekeeper, and was confined to a hospital for a period of one month. The defendant answered by general denial, coupled with a plea of contributory negligence, in that plaintiff imprudently and without cause jumped off the car. The cause was put at issue by replication containing a general denial of the new matter set forth in defendant's answer. A trial was had before a jury, and a verdict rendered in favor of plaintiff in the sum of one cent, and judgment was rendered accordingly. Thereupon plaintiff filed a motion for a new trial, assigning, among other causes, as grounds therefor: First, that the verdict was against the evidence; second, that the verdict was against the law and the evidence; third, that the verdict for nominal damages was the result of passion, prejudice, and mistake, or total disregard by the jury of their duty. The circuit court sustained plaintiff's motion for a new trial on the ground that the finding was such as to indicate that the jurors were influenced by prejudice, mistake, or misunderstanding of their duties, and wholly disregarded the instructions of the court as to measure of damages. The action of the court in sustaining plaintiff's motion for a new trial was duly excepted to by defendant. In due time the defendant perfected its appeal from the order of the circuit court setting aside the verdict and judgment and granting plaintiff a new trial. The errors discussed by defendant's counsel in their brief are: First, the variance between the pleadings and the proof; second, the sufficiency of the petition; third, the action of the circuit court in sustaining plaintiff's motion for a new trial; fourth, that the verdict for plaintiff for nominal damages only was a verdict for defendant, and should be treated as such.

The first of these assignments of error is not available to defendant, for the reason that no question touching the same was properly presented for the determination of this court. An examination of the record discloses that no exception was saved by defendant to the action of the circuit court in respect to this alleged error so as to be available here. If, as contended by defendant, the verdict was not rendered upon the averment of the petition that the plaintiff was thrown off the car, but was injured by jumping off the car, objection should have been made to the evidence when offered. The trial court could then have allowed an amendment...