Duke v. Missouri Pac. Ry. Co.

• Decision Date: 21 December 1889
• Citation: Duke v. Missouri Pac. Ry. Co., 12 S.W. 636, 99 Mo. 347 (Mo. 1889)
• Parties: DUKE v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

12 S.W. 636

99 Mo. 347

DUKE v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

December 21, 1889.

DAMAGES — PERSONAL INJURIES — INSTRUCTIONS.

1. An instruction to assess sums expended "for professional services, physicians, and nurses," authorizes assessment only for services of physicians and nurses.

2. An instruction authorizing assessment of sums expended for professional services and medicines is sufficient to cause a verdict, in an action for personal injuries, to be set aside, where it merely appears that plaintiff was treated in a city hospital, and there is no evidence as to the value of the services and medicines, or that she paid or incurred any liability therefor.

Appeal from circuit court, Lafayette county; JOHN P. STROTHER, Judge.

Robt. Adams and T. B. Buckner, for appellant. A. Comingo and Andrews & Lee, for respondent.

BRACE, J.

This is an action for damages for personal injuries, alleged to have been sustained by the plaintiff while a passenger on one of defendant's passenger trains, caused by the derailment of the train, and the overturning of the car in which plaintiff was seated, and its precipitation down an embankment, through the negligence of the defendant's servants. The jury found for the plaintiff, and assessed her damages at $5,000.

1. No errors are assigned on the admission or exclusion of evidence. The instructions, as a whole, presented to the jury not unfavorably to the defendant the measure of care which a carrier of passengers is required to exercise, and defendant, in the argument, concedes that there was evidence given which, under proper instructions, would authorize a verdict for the plaintiff; but complains that "the amount of the verdict, under the evidence, is such as to justify the belief that the jury were misdirected." So that, practically, the only questions to be inquired into in this case arise upon the instructions given upon the subject of damages and the amount assessed. The allegation of damages in the petition is "that, on account of said injuries, it was necessary for plaintiff to expend, and she did expend, a large sum of money for professional services of physicians and nurses, and for drugs, to-wit, one thousand dollars, and was damaged in bodily pain, anguish, and suffering, and in the permanent injury of her hip and ankle, and the loss of her suit of hair, in the sum of twenty-five thousand dollars." So much of the instruction for the plaintiff as bears upon the question of damages, and to which objections are urged, is as follows: "And if you further believe that, on account of such injuries, it became and was necessary for plaintiff and that she did expend large sums of money for professional services, physicians, and nurses, and also for drugs and medicines, and that from the overturning of the train as aforesaid, she suffered mental anguish and bodily pain, and was, as to the physical parts of her body heretofore mentioned, permanently injured and disabled, and that the overturning of said car in which the plaintiff was seated as a passenger was the direct and proximate cause thereof, you will find for the plaintiff, and assess her damages at such sum as will, in your opinion, compensate her therefor, not to exceed twenty-five thousand dollars." The criticism upon the wording of this instruction — that it...