Davidson v. St. Louis Transit Co.

• Decision Date: 27 February 1908
• Parties: DAVIDSON v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

109 S.W. 583

211 Mo. 320

DAVIDSON v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri.

February 27, 1908.

1. DAMAGES — PERSONAL INJURIES — IMPAIRMENT OF EARNING CAPACITY.

Submitting to the jury, in a personal injury case, as one of the elements of plaintiff's damages, "her probable impairment of earning capacity in the future," when, though the petition averred that prior to the accident plaintiff's earning capacity was at least $50 per month, there was no evidence of what she was able to earn before the accident, was error, the case not being one in which the earning capacity was not susceptible of proof, and the submission to the jury not being of the mere personal injury from the deprivation of the power to work, independent of the pecuniary benefits labor would confer.

2. TRIAL — INSTRUCTIONS — ASSUMPTION OF FACTS.

It was not error to assume, in instructions, facts put in issue by the answer, where the examination and cross-examination of witnesses clearly indicated that counsel were not seriously disputing the existence of those facts, but that both parties were treating such facts as being in existence.

3. CARRIERS—INJURIES TO PASSENGERS—NEGLIGENCE — LIMITING RECOVERY TO NEGLIGENCE ALLEGED.

Where recovery is sought on the ground of specific negligence, alleged in the petition, that defendant so carelessly and negligently operated its cars that the car in which plaintiff was riding was caused to collide with another car of defendant, the court should limit the consideration of the jury to such specific negligence.

4. DAMAGES—PERSONAL INJURIES—EXCESSIVE VERDICT.

Evidence in an action for personal injuries, in which a permanent nervous condition was sought to be shown, held insufficient to support a verdict of $12,000.

Lamm, J., dissenting.

In Banc. Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by Carrie Davidson against the St. Louis Transit Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded for new trial.

This cause is now pending in this court upon appeal, on the part of the defendant, from a judgment of the circuit court of the city of St. Louis in favor of the plaintiff, for the sum of $12,000. Plaintiff, at the time she received the injuries complained of in this action, was a young married woman, 29 years old, and at the time of the institution of this suit she was still under coverture. Her husband died in July, 1903, pending the suit. After his death the plaintiff filed an amended petition, which charged that defendant was a Missouri corporation, engaged as a common carrier of passengers by operating electric cars on the streets of St. Louis, and more particularly on double tracks on Grand avenue, which latter street intersected with Finney avenue; that on September 4, 1902, she was riding as a pay passenger on one of defendant's Grand avenue cars, and was entitled to a very high degree of care and diligence in being carried safely, but that "defendant so carelessly and negligently conducted itself that a car, in which plaintiff was riding, was caused to collide with another car belonging to defendant, upon Grand avenue, near its intersection with Finney avenue, whereby plaintiff was thrown down, causing serious injuries to her back, arms, legs, hands, kidneys, spinal cord, nervous system, and brain, and also causing many bruises, wounds, and contusions upon her body, head, spinal column, abdomen, breast, and limbs, on account of which said several injuries plaintiff has been confined to her bed ever since said injuries, and has suffered excruciating physical pain and mental anguish, and will in all reasonable probability continue to suffer such bodily pain and mental anguish for the rest of her life, and will, during the remainder of her life, remain a confirmed invalid; that at the time said injuries occurred and this suit was begun, plaintiff was a married woman, but on the 1st day of July, 1903, her husband departed this life, and she is now a single person; that since July 1, 1903, she has incurred, and will be compelled to incur in the future, large sums of money for medical and surgical treatment, the amount whereof she is unable to ascertain, and that she has been and will be compelled to incur large sums of money for medicines and nursing on account of her said injuries, the amount whereof she is unable to state; that before her said injuries she was a strong, healthy, vigorous person, capable of earning at least $50 per month, and would and could have earned that sum per month ever since July 1, 1903, and in the future, had she not been injured as aforesaid by the said negligence of the defendant, and that her loss in earnings, occasioned by her said injuries, in the future will equal at least $600 per year for the remaining part of her life, as she is a confirmed invalid, and from the nature of her injuries she will, in all reasonable probability, never be better, wherefore plaintiff says she has sustained damages in the sum of $30,000, for which, and costs of suit, she prays judgment." The answer of the defendant consisted of a general denial.

The facts developed, at the trial of this cause, on behalf of the plaintiff, were substantially as follows: On September 4, 1902, plaintiff was a passenger on a north-bound car, operated by defendant on Grand avenue, returning home from the Delmar race track, about six o'clock p. m. Defendant had two tracks on Grand avenue, one for north-bound cars, and the other for south-bound cars. Finney avenue intersects Grand avenue, and a track ran into Grand from Finney avenue, connecting with said north-bound track by a switch. As the car upon which the plaintiff was a passenger approached Finney avenue, another car, operated upon Grand avenue by defendant, running from the northern to the southern part of the city, was approaching Finney avenue. These cars were running at a rapid speed, but slowed down as they came to the Finney avenue crossing. Both cars "started off again," as one witness describes it, and the car upon which the plaintiff was being carried, instead of continuing northward, turned on the Finney avenue switch westwardly, and collided with great force with the south-bound car on Grand avenue, breaking the windows and somewhat disarranging the bodies of the cars on the trucks. The car plaintiff was on was heavily loaded, and she and many others were standing in the aisle. The plaintiff was thrown to the floor of the car and under a seat of the car, and, after arising, walked, with assistance, to a near-by drug store, and was afterwards driven to her home in a carriage.

The plaintiff, Carrie Davidson, testified, in substance, as follows: That she is 30 years old, and a widow—her husband died on the 1st day of July, 1903; that before she was hurt she enjoyed the best of health; that she had typhoid fever when she was a girl, about 16 years old, but that she had no further serious illness that confined her to her bed before she was injured, except that typhoid fever; that on the 4th of September she had been to the Delmar track, took an Olive street car, paid her fare, rode east to Grand avenue, then took a Grand avenue car, and rode north toward her home. It was about half-past 5 or 6 in the evening when the cars collided. "I was thrown to the floor to my knees, my stomach and abdomen against the side. I was thrown back to the floor, and struck my leg violently and my back, my left hip, and between my shoulders and left arm and back of my head. I couldn't get up, I was wedged under the seat, with my head pressed to my chest. I was assisted to the drug store, and placed on a settee, I believe. I was driven home in a carriage." Plaintiff testified that she was assisted to the carriage, but did not know the persons who assisted her. Her husband took her out riding in a storm buggy the last of April or the first of May, 1903; she was bolstered up with pillows, was out but a short time. Her husband and mother assisted her down the stairs, and when she got back her mother and husband assisted her upstairs; that the next time she went out of the house after she was injured was in July, 1903, at her husband's funeral. She was carried downstairs. They placed pillows in the carriage and wrapped her up. After the funeral her two brothers carried her upstairs to her room. The next day after the accident plaintiff testified that she suffered great pain, the shock and jar having caused flooding; that she was suffering pain all over body, in her abdomen, back, shoulders, head, arms, left hip, and thigh, and that her whole body ached; that she continued to grow worse, suffered pain all over her body; hot irons had to be put to her feet, and that she could not raise her head. "My eyes, my limbs, my whole body ached, my back, shoulders, hips, and sides. I swelled to an enormous size. The girth of my body was twice the size it would have been in its normal condition." Being inquired of about her condition in the winter of 1902-03, she repeated her former testimony, ending by saying: "My whole body ached." Her husband had taken her out in the air two or three times. Once, in June, he assisted her to a street car, and held her in his arms; rode down town and back, and was carried upstairs; that her swelling had decreased some, but she was still suffering pain in different parts of her body; that she had spasms, and at such times would suffer excruciating pain, and would become unconscious a few minutes, and her whole body ached; that her body would become rigid, and after effect was exhaustion, and for three or four days she would not be able to move; that, after her last trial she had been confined to her bed for days, and could not raise a limb or move, suffering pain all over her whole body; that her head, back, and stomach were cold; that she had no use of her limbs, they refused to sustain the weight of her body. "Before you were hurt I will get you to state what work you were able to do. A. ...