Devoy v. St. Louis Transit Co.

• Decision Date: 21 December 1905
• Citation: 192 Mo. 197,91 S.W. 140
• Parties: DEVOY v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

91 S.W. 140

192 Mo. 197

DEVOY v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

December 21, 1905.

1. CARRIERS—WHO ARE PASSENGERS.

One who attempts to enter a street car for the purpose of taking passage, when it stopped for him on signal, is a passenger, though he saw no conductor or motorman on the car.

2. NEW TRIAL — NEWLY DISCOVERED EVIDENCE —DILIGENCE.

An affidavit of the owner of a drug store that the plaintiff in an action for personal injuries, at the time of the accident, walked into the store without assistance, is insufficient to authorize a new trial on the ground of newly discovered evidence to meet the evidence of the plaintiff that he was compelled to use crutches ever since the injury complained of, since the exercise of reasonable diligence would have procured such testimony before or at the time of trial.

3. SAME — SUFFICIENCY OF NEWLY DISCOVERED EVIDENCE.

Where there was overwhelming contradictory testimony to alleged newly discovered evidence, so that the court could not say that the testimony of the affiant would produce a different result, a new trial was properly denied.

4. SAME—MISCONDUCT OF JURY.

An affidavit of a juror will not be considered on motion for a new trial on the ground of misconduct of the jurors.

5. SAME—PROCEEDINGS TO PROCURE—DEPOSITION.

On motion for a new trial in an action for personal injuries, the refusal of the court to appoint a special commissioner to take depositions, on a showing that the applicant could in that way procure testimony as to the misconduct of the jury and as to newly discovered evidence, which it could not procure by voluntary affidavits, was not error.

6. DAMAGES—PERSONAL INJURIES—EXCESSIVE DAMAGES.

In an action for personal injuries, where the plaintiff, a lawyer 70 years of age, had his thigh bone fractured, was laid up for several months, was compelled to go on crutches, and the injury was likely to result in permanent lameness, and he estimated his income at $2,500 a year, an award of $15,000 damages was excessive and should be reduced to $10,000.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Dennis Devoy against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed on condition.

Boyle & Priest, Geo. W. Easley, Edward T. Miller, and J. W. Jamison, for appellant. Seneca N. & S. C. Taylor and Hamilton Grover, for respondent.

LAMM, J.

Suit for personal injuries, based on the alleged negligence of appellant's servants in operating a street car at the northwest corner of Eighth and Pine streets in St. Louis. The specifications of negligence set forth in an amended petition may be allowed to tell in their own words their own story, thus: "Plaintiff states that on the afternoon of January 12, 1901, he went to the corner of Eighth and Pine streets, in said city of St. Louis for the purpose of taking one of defendant's cars to convey him to his home. He stood on the northwest corner of Eighth and Pine streets, on the west side of Eighth street, and, as one of the cars at the time in possession of and operated by the defendant came west on Pine street, the plaintiff signaled to the motorman to stop said car. In response to said signal defendant's operators and employés in charge of said car did stop the same to allow the plaintiff to get on. Plaintiff thereupon, without delay and with due care on his part, proceeded to board said car, and put his right foot upon the lower step of the back platform of said car, and got hold of the hand rail of said platform, and was in the act of putting his other foot upon the step of said car, when the defendant's employés in charge of said car carelessly and negligently, and without warning, caused said car to plunge violently forward and proceed on its way, without waiting for the plaintiff to get a safe and firm footing upon the said car. Plaintiff states that the violent and unexpected start which the defendant's employés carelessly and negligently caused said car to make, without waiting for plaintiff to get a safe and firm footing upon said car, was of such character as to throw the plaintiff off the lower step of the back platform of said car, and did throw him off of said lower step, and precipitated him violently to the granite pavement on said street, with such force as to," etc. The general issue alone was tendered by the answer. The cause being tried to a jury, and plaintiff having closed his case, defendant asked no demurrer, no peremptory instruction, and produced no testimony, standing mute, save the following prayer was offered by it and granted by the court: "The court instructs the jury that it does not devolve upon the defendant to explain or account for plaintiff's injury, but, on the contrary, the burden is on the plaintiff to show to your satisfaction that his injuries occurred to him as the direct result of defendant's negligence. You are further instructed that negligence cannot be presumed against the defendant, but plaintiff is required to prove the same to your satisfaction, and, if he has failed to so prove such negligence, your verdict must be for defendant." For plaintiff the following instructions—to be commended as models of everyday simplicity, legal precision, and comprehensiveness, wherein the candle held up to the jury was in no wise hid under a bushel of verbiage—were allowed, over the objections of defendant and exceptions saved: "(1) If the jury find from the evidence that on the 12th day of January, 1901, the defendant was a carrier of passengers for hire by street railroad, and used the railway and car mentioned in the evidence for such purpose, and if they further find from the evidence that on said day the defendant's employés in charge thereof stopped the car mentioned in the evidence at the west crossing of Eighth street on Pine street in the city of St. Louis for the purpose of receiving the plaintiff as a passenger upon said car, and that, while said car was so stopped, the plaintiff was in the act of stepping upon the steps of said car to become a passenger thereon, and defendant's employés in charge of and operating said car carelessly and negligently, and without warning, caused said car to be started forward before the plaintiff had a reasonable time to get upon said car and to a place of safety, and that thereby the plaintiff was thrown upon the street and injured, and if the jury further find from the evidence that defendant's servants in charge of said car, by the exercise of the highest degree of care which would have been used by careful and skillful street railroad employés under like circumstances, could have prevented such movement of said car at such time, and thereby have averted the injury to plaintiff, and failed to do so, and if the jury further find from the evidence that the plaintiff, while in his attempt to board said car, was exercising ordinary care for his safety in doing so under the circumstances shown in the evidence, then the plaintiff is entitled to recover. (2) The court instructs the jury that if, under the evidence and instructions of the court, you find in favor of plaintiff, you should assess his damage at such an amount as you believe, from the evidence, will be a fair compensation to him for the pain of body and mind, if any, which he has suffered, occasioned by his injuries in question, and for such pain of body and mind, if any, as in all probability he will suffer in the future, occasioned by such injuries, and for such permanent injury, if any, to plaintiff's thigh as you may find was occasioned by said injuries, and for such loss of earnings, if any, as you may believe from the evidence he has suffered in consequence of said injuries, or will in all reasonable probability suffer on account of said injuries, if any, and for such reasonable actual expenses, if any, which he has incurred for surgical and medical treatment, but the total damages which you may allow plaintiff must not in any case exceed the sum of $25,000." The foregoing instructions were supplemented, on the court's own motion, by one allowing nine jurors to make a verdict, and thereupon ten jurors signed and returned a verdict for plaintiff, assessing his damages at $15,000, on which verdict a judgment was entered, motion for a new trial and in arrest filed and overruled, due exceptions saved, and the cause brought here for review.

In effect the assignments of error presented may be formulated as follows: (1) That the court erred in giving instruction No. 1; (2) that under the pleadings and evidence plaintiff was not entitled to recover; (3) that the court erred in overruling the motion for new trial (and herein of a ruling of the court on a petition to appoint a special commissioner to take depositions in support of said motion); (4) that the verdict is excessive. The facts of the case essential to an understanding of the questions presented will appear presently in connection with a consideration of the foregoing assignments of error in their order.

1. The first and second assignments of error, as presented by appellant's counsel, are substantially one and the same, distinguishable only by being stated in a different way by the use of different words, and may be disposed of together. Did the court err in giving respondent's instruction No. 1? We think not. Was respondent entitled to go to the jury? We think so, because: The specified negligences were not only abundantly proved by the testimony of respondent and of his eyewitnesses, but that testimony stands unassailed by countervailing proof. The record shows there is a granite pavement where the accident occurred; that it happened toward 6 o'clock, at dark of a Saturday, on the 12th of January, 1901; that a drug store stands on the corner of Eighth and Pine; that it was lighted up, and the street lamps were going at the time; that respondent went to the northwest corner of Eighth and Pine streets,...