Davis v. Davis

• Decision Date: 05 December 1921
• Docket Number: No. 14098.,14098.
• Citation: 235 S.W. 182
• Parties: DAVIS v. DAVIS
• Court: Missouri Court of Appeals

235 S.W. 182

DAVIS v. DAVIS

No. 14098.

Kansas City Court of Appeals. Missouri.

December 5, 1921.

Appeal from Circuit Court, Macon County; Vernon L. Drain, Judge.

"Not to be officially published."

Action by Florence N. Davis against James C. Davis, Director General of Railroads and Agent of the United States of America, as successor to John Barton Payne, operating the Wabash Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

N. S. Brown and Homer Hall, both of St. Louis, and Franklin & Van Cleve, of Macon, for appellant.

Shelton & Shelton, of Macon, and Jamison, Ostergard & Jamison, of Kansas City, for respondent.

ARNOLD, J.

This is a suit in damages for personal injuries alleged to have been sustained by plaintiff in alighting from one of defendant's passenger trains at Love Lake, Mo. Plaintiff was a passenger for hire on said train, and when the train arrived at said station, which was her destination, it was stopped for the purpose of allowing her to alight. There was only a gravel landing at said station, instead of a platform, for the use of passengers in alighting. The train arrived at Love Lake about 6:30 p. m. on February 18, 1920, at which time it was quite dark. When the train stopped the brakeman, at plaintiff's request, took her grip and a stool furnished by the railroad company for the use of passengers in alighting from its trains, preceded plaintiff from the train, and placed the stool at the steps of the car for the purpose of enabling plaintiff to alight therefrom. The testimony tends to show that the brakeman failed to place said stool at the proper place where plaintiff naturally would step, but instead placed it too far back under the car step. There was evidence to the effect that the brakeman held his lantern on his arm farthest from the train, and as a result there was no light, or insufficient light, cast upon said stool so placed for plaintiff's use in alighting. Plaintiff testified that she let go of the handrail attached to the car steps, and placed her foot where she supposed the stool had been placed. The stool being too far back under the steps, plaintiff's heel caught on the outer edge of the stool, which turned over on its side and back under the car steps, throwing plaintiff with force on the gravel landing, thereby inflicting injuries to her foot and ankle of which she complains. The petition, after setting out in detail the nature of the Injuries complained of, alleges that the same are permanent, and states:

"Plaintiff further alleges that she was compelled to and did expend for necessary medical care, attention, and medicine to be used upon her ankle as aforesaid the sum of $15; the same being a reasonable charge therefor."

The prayer is for damages in the sum of $4,500 on account of the injuries so received, and in addition thereto the sum of $15 for necessary medical care and attention and for medicines. The answer of defendant James C. Davis admits that he is the duly appointed, qualified, and acting agent of the President of the United States, with all the rights, privileges, and liabilities against his predecessor, Walker D. Hines, as Director General of Railroads, while in the control and management and operation of the Wabash Railroad, as well as his predecessor. John Barton Payne, and denies each and every allegation in plaintiff's first amended petition not expressly admitted. Further, the answer contains a plea of contributory negligence. The reply of plaintiff was a general denial. The cause went to trial to a jury, and judgment was rendered for plaintiff in the sum of $2,102.50. Defendant appeals.

In his assignments of error defendant urges, among other things, that instruction No. 2, given on behalf of plaintiff, is erroneous and objectionable because "it tells the jury that they may find an additional sum for medical attention notwithstanding the first instruction told them they could find the full amount sued for in payment of her injuries. The effect of this was to tell the jury that they could find for plaintiff in a greater amount than she had sued for." Instruction No. 2 complained of is as follows:

"If you further find and believe from the evidence that plaintiff was, by reason of the injuries aforesaid received by her, if any, compelled to and did employ medical assistance to treat her said injuries so received, if any, and that plaintiff, paid for such medical attention and service, you will find for her in such other and further reasonable and necessary sum as you may find and believe from the evidence she has paid out for such medical aid and attention."

It is further urged that this instruction placed no limit upon the amount the jury might allow plaintiff for medical attention and medicine, although the petition alleged she had spent only $15 for such purposes. Defendant further objects that said instruction not only failed to confine the jury to the allegations of the petition as to the amount expended for medical services and...