Davidson v. St. Louis Transit Co.

• Decision Date: 02 April 1908
• Citation: 109 S.W. 583,211 Mo. 320
• Parties: CARRIE DAVIDSON v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

109 S.W. 583

211 Mo. 320

CARRIE DAVIDSON v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri

April 2, 1908

Appeal from St. Louis City Circuit Court. -- Hon. O'Neill Ryan Judge.

Reversed and remanded.

Edward T. Miller and T. E. Francis for appellant; Boyle & Priest and Morton Jourdan of counsel.

(1) Instruction 1, given at the request of plaintiff, is erroneous because it authorized the jury to return a verdict for plaintiff, if they found that there was any negligence on the part of defendant, instead of limiting them to the particular act of negligence counted on in the petition. Wolfe v. Supreme Lodge, 160 Mo. 675; Abbott v Railroad, 83 Mo. 278; Price v. Railroad, 72 Mo 419. (2) Instruction 2, defining the measure of damages, given at plaintiff's request, is erroneous for the reason that it authorized the jury to assess damages "for the probable impairment of plaintiff's earning capacity in the future" when no evidence was given as to what her earning capacity was prior to her injury. 6 Thompson on Negligence, sec. 7307; Voorhies on Measure of Damages (Personal Injuries), sec. 54; Winter v. Railroad, 74 Iowa 448; Railroad v. Bigham, 30 S.W. 254; Railroad v. Simcock, 81 Tex. 503; Railroad v. Artusey, 31 S.W. 319; McHugh v. Schlosser, 159 Pa. St. 486; McKenna v. Gas Co., 198 Pa. St. 31; Britton v. Railroad, 90 Mich. 159; Mfg. Co. v. Woodson, 98 Ala. 378; Railroad v. Pearson, 12 So. 476; Leeds v. Gas Light Co., 90 N.Y. 26; Staal v. Railroad, 107 N.Y. 625; Duke v. Railroad, 99 Mo. 347; Slaughter v. Railroad, 116 Mo. 275; O'Brien v. Loomis, 43 Mo.App. 29; Mammerberg v. Railroad, 62 Mo.App. 568; Stoetzle v. Sweringen, 96 Mo.App. 592. (3) Said instruction 2 is erroneous for the further reason that it authorized the jury to assess damages "for the probable impairment of plaintiff's earning capacity," without limiting their finding to the amount of damages claimed for such impairment in the petition. Carter v. Shotwell, 42 Mo.App. 665; Maupin v. Triplett, 5 Mo. 422; Moore v. Dixon, 50 Mo. 424; 5 Ency. Pleading and Practice, 711; Impkamp v. Railroad, 108 Mo.App. 664; Smoot v. Kansas City, 92 S.W. 363. (4) The verdict is grossly excessive.

Seneca N. & S. C. Taylor for respondent.

(1) A carrier of passengers is required, so far as it is capable by human care and foresight, to carry them safely, and it is responsible for all injuries resulting to its passengers from even the slightest negligence. Hite v. Railroad, 130 Mo. 139; Clark v. Railroad, 127 Mo. 208; O'Connell v. Railroad, 106 Mo. 482; Furnish v. Railroad, 102 Mo. 450; Leslie v. Railroad, 88 Mo. 55; Waller v. Railroad, 83 Mo. 615; Parker v. Railroad, 69 Mo.App. 54; Lemon v Chanslor, 68 Mo. 356; Higgins v. Railroad, 36 Mo. 418; Aston v. Railroad, 105 Mo.App. 226; Chouquette v. Railroad, 80 Mo.App. 520; Powers v. Railroad, 60 Mo.App. 483; Nagel v. Railroad, 88 Cal. 86; Railroad v. Cook, 145 Ill. 551; Lambeth v. Railroad, 66 N.C. 494; Railroad v. Thompson, 76 Ga. 770; Palmer v. Canal Co., 120 N.Y. 175; Penn Co. v. Roy, 102 U.S. 451; Railroad v. Horst, 93 U.S. 291; Railroad v. Derby, 14 How. (U.S.) 486; 2 Greenleaf on Evidence, sec. 221; 2 Kent's Com., 600. (2) The collision of cars of a carrier of passengers for hire, whereby an injury happens to a passenger, constitutes a prima-facie presumption of negligence on the part of the carrier, which casts upon it the burden of showing to the reasonable satisfaction of the jury that such collision took place notwithstanding the carrier had exercised to prevent the same the utmost care, skill and foresight of a very cautious person engaged in the like employment, and notwithstanding that the carrier had not been guilty of even the slightest negligence tending to produce such collision, but that it was the result of mere casualty or unavoidable accident. Unless this presumption is rebutted by the carrier to the reasonable satisfaction of the jury, they may regard it as conclusive, but the carrier can rebut it by showing that the collision which produced the injury to the passenger could not have been prevented by the carrier, or its agents or servants, by the exercise of the utmost care, skill and foresight of a very cautious person engaged in the same business. Reynolds v. Railroad, 189 Mo. 419; Allen v. Railroad, 183 Mo. 436; Magrane v. Railroad, 183 Mo. 119; Och v. Railroad, 130 Mo. 51; Clark v. Railroad, 127 Mo. 197; Furnish v. Railroad, 102 Mo. 453; Hipsley v. Railroad, 88 Mo. 352; Dougherty v. Railroad, 81 Mo. 325; Lemon v. Chanslor, 68 Mo. 356; Higgins v. Railroad, 36 Mo. 432; Aston v. Railroad, 105 Mo.App. 226; Chouquette v. Railroad, 80 Mo.App. 520; Madden v. Railroad, 50 Mo.App. 675; Yerkes v. Packet Co., 7 Mo.App. 267. The above is the Missouri rule, and it obtains everywhere. 1 Kinkead on Torts, sec. 344; Clark's Accident Law, sec. 53, p. 119; 2 Shearman & Redfield on Neg. (5 Ed.), sec. 516; Booth on Street Railroads (1 Ed.), sec. 361; 3 Thompson on Neg., sec. 2754. (3) Plaintiff's instruction 2 is not erroneous, as plaintiff had been a married woman for three years before and at the time she was injured, and at the time of the trial her husband was dead, she a single woman and a physical wreck, made such by the negligence of the defendant. We submit that the cases cited by appellant have not the remotest bearing on the case at bar. They relate to cases of adults where evidence of loss of time and earnings was susceptible of proof, but such loss was not alleged nor proven at the trial. The settled rule as to the measure of damages recoverable for personal injuries caused by negligence of defendant, resulting in personal injuries to a married woman or a minor, is, that without evidence of earning capacity, the jury in assessing damages may take into account the probable impairment of plaintiff's earning capacity in the future, beginning from the time plaintiff will be entitled to his or her earnings. This rule is based upon the necessities of the case, as will appear from overwhelming authorities in this and other courts, State and Federal. Wise v. Railroad, 95 S.W. 902; Perrigo v. St. Louis, 185 Mo. 290, case of married woman; Tandy v. Railroad, 178 Mo. 247; Chitty v. Railroad, 166 Mo. 436; Schmitz v. Railroad, 119 Mo. 277, action by minor; Rosenkranz v. Railroad, 108 Mo. 17; Furnish v. Railroad, 102 Mo. 669; Grogan v. Foundry Co., 87 Mo. 326; Nagel v. Railroad, 75 Mo. 653; Brunke v. Telephone Co., 112 Mo.App. 623; Mabrey v. Gravel Road Co., 92 Mo.App. 603; Cullar v. Railroad, 84 Mo.App. 345; Dunn v. Electric Co., 81 Mo.App. 45; Blackwell v. Hills, 76 Mo.App. 54; Bartley v. Trorlicht, 49 Mo.App. 214; Railroad v. Humble, 181 U.S. 67; Delaware, etc., Co. v. Devore, 114 F. 160; Steam Navigation Co. v. Hollander, 59 F. 419; Railroad v. Jones, 49 F. 345; McGarahan v. Railroad, 171 Mass. 211; Harmon v. Railroad, 165 Mass. 100; Jordan v. Railroad, 138 Mass. 426; Railroad v. Lacy, 86 Tex. 247; Brunswig v. White, 70 Tex. 511; Railroad v. Edwards, 91 S.W. 641, strong case; Railroad v. St. Clair, 51 S.W. 667; Railroad v. Johnson, 37 S.W. 771; Railroad v. Mayday, 188 Ill. 308; Railroad v. Hastings, 136 Ill. 254; Fisher v. Jansen, 128 Ill. 552; Joliet v. Conway, 119 Ill. 489; Railroad v. Kremple, 103 Ill.App. 1; Railroad v. Warner, 18 Am. & Eng. R. R. Cases 103; Strattner v. Elec. Co., 50 A. 57; Houghkirk v. Canal Co., 92 N.Y. 219; O'Meara v. Railroad, 38 N.Y. 445; Feinstein v. Jacobs, 37 N.Y.S. 346; Railroad v. Johnson, 91 Ga. 466; Railroad v. Newton, 85 Ga. 517; Powell v. Railroad, 77 Ga. 200; Wimber v. Railroad, 114 Iowa 556; Stutz v. Railroad, 73 Wis. 156; Malone v. Railroad, 152 Pa. St. 391; Jones v. Railroad, 128 Pa. 308; Tramway Co. v. Riley, 59 P. 476; Railroad v. Bolt, 59 S.W. 27; Railroad v. Dick, 78 S.W. 914; Beaudin v. Bay City, 99 N.W. 287. At the trial, counsel for plaintiff showed that after her marriage she did all the housework, washing, scrubbing, sweeping, everything in household duties. The plaintiff was then asked: "Now, I will get you to state, immediately before you were married, say in 1898, 1899, what you were able to do, that is, do as a single woman?" A. "I was employed at the time as general manager of cafes; took full charge; had as high as fourteen and sixteen girls working under me." Mr. Jourdan: "I move to strike out that answer for the reason, first, it is not responsive to the question; and second, that it does not tend to prove any fact in the case, as wholly incompetent and immaterial, and third, that her earning capacity since the death of her husband last year cannot be shown in that way -- her earning capacity or ability to work in 1898 or 1899." The Court: "I think that objection is well taken for another reason: we have to deal only with the present and future; the jury cannot consider anything respecting her power of earning except since her husband's death." The answer was stricken out at the instance of counsel for defendant. Therefore, whether the ruling of the court was correct or incorrect, the defendant cannot complain. The doctrine is well settled in Missouri that parties litigant will be confined to the course they have taken throughout the trial, even though that course may be inconsistent with the one in the pleadings. No evidence was necessary other than showing her age and physical condition immediately before her injuries, and this was abundantly shown by the evidence. By the action of counsel for defendant, in its motion to strike out, plaintiff was precluded from showing what pay she received as seamstress or general manager of cafes. Moreover, the ruling of the court in excluding that testimony at the instance of the defendant was right. What plaintiff had been able to earn as seamstress and manager of cafes two and one-half years before she was hurt and four years and eleven months...