O'Connell v. St. Louis Cable & W. Ry. Co.

• Decision Date: 09 November 1891
• Citation: 17 S.W. 494,106 Mo. 482
• Court: Missouri Supreme Court
• Parties: O'CONNELL v. ST. LOUIS CABLE & W. RY. CO.

17 S.W. 494

106 Mo. 482

O'CONNELL v. ST. LOUIS CABLE & W. RY. CO.

Supreme Court of Missouri, Division No. 1.

November 9, 1891.

CARRIERS OF PASSENGERS — NEGLIGENCE — DAMAGES — INSTRUCTIONS — REVIEW ON APPEAL.

1. In an action at law the appellate court does not review as to the weight of evidence.

2. Certain instructions discussed, and held not to assume controverted facts.

3. Carriers, though not insurers of passengers, are bound to exercise towards them the highest degree of care of a very prudent person.

4. Verdict for $5,000 damages, where plaintiff sustained a fracture of the thigh-bone, followed by pain, permanent after-effects, etc., held not sufficiently large to justify a reversal.

(Syllabus by Barclay, J.)

Appeal from St. Louis circuit court; JAMES E. WITHROW, Judge.

Action by one O'Connell against the St. Louis Cable & W. Railway Company for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

STATEMENT BY THE COURT. This action is for personal injuries to plaintiff, alleged to have been sustained by him while a passenger upon one of defendant's cable railway cars in St. Louis. The answer was a general denial. Plaintiff's evidence tended to show that he hailed one of defendant's cars on Franklin avenue, near the place of accident; that it stopped within 10 or 15 feet of the curve into Wash street, and, as plaintiff was proceeding to enter the car from the street, and had one foot on the car platform and the other on the lower step, the car suddenly started forward with a jerk, and he was thrown off to the granite pavement between the car tracks; that he was picked up, put into the car, paid his fare, and afterwards went to the city hospital, where he remained two months. Plaintiff was a laborer, and had earned at quarry work $1.75 to $2.50 per day. His injuries consisted of a fracture of the thigh-bone at the hip-joint. One of his medical attendants testified to his pain, and that, in his opinion, "the effect of the injury would be permanent, and would cause plaintiff to walk with a jerky motion or step." When plaintiff left the hospital he used crutches, and at the time of the trial had not discarded them. He testified that at that date (two years after the accident) he could not walk or go any distance without them, and still suffered pain from the injury. The defendant's testimony tended to show that plaintiff had not been hurt on defendant's line, and that no such accident occurred at the time and place stated by him. The court gave the following instructions for plaintiff, viz.: "(1) If you find from the evidence that the plaintiff, on or about December 13, 1886, got upon the rear platform of one of the cars that was then being operated by defendant as a carrier of passengers, and that thereafter he was thrown from said platform and injured by reason of the omission of such care on the part of the operatives or employes of defendant in operating or moving said car (at the time and place of the injury) as is particularly defined in instruction No. 2; and if you further find from the evidence that by reason of such want of care the car on which plaintiff was riding at the time was started by defendant's employes rapidly around a certain curve at the junction of Wash and Twenty-Eighth streets before plaintiff had a reasonable time to reach a position of reasonable safety on said car, and that plaintiff thereafter paid his fare as a passenger on said car, — then your verdict should be for plaintiff. (2) The degree of care which defendant and its employes were bound to exercise towards plaintiff (if you find from the evidence he paid his fare as a passenger at any time during his said trip on the car, as he alleges) was this: Defendant was bound to run and operate its cars with the highest degree of care of a very prudent person in view of all the facts and circumstances at the time of the alleged injury. (3) If you find from the evidence that at the time of plaintiff's alleged injury the car on which he had entered was operated with the care defined in instruction No. 2 on the part of defendant's employes, in view of the actual position of its tracks at the place of said alleged injury, and in view of all the facts and circumstances in evidence, then your...