Edelmann v. St. Louis Transfer Co.

Decision Date24 April 1877
PartiesFRANK EDELMANN, Respondent, v. ST. LOUIS TRANSFER COMPANY, Appellant.
CourtMissouri Court of Appeals

1. Where the word “negligence” is used, in an instruction, in its popular sense, and defendant offers no instruction defining negligence, he cannot afterwards complain that the jury was not instructed as to its meaning.

2. To justify exemplary damages, evidence should be given tending to show that the act by which the injury was sustained was willful or intentional, or what the law considers equivalent to a willful or intentional act.

3. In an action for injuries sustained by the negligence of defendant's servant, the fact that he was not discharged, but was retained in defendant's employ, does not tend to prove a ratification, so as to authorize the jury to give punitive damages.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

S. M Breckinridge, for appellant, cited: Dassler v. Wisley, 32 Mo. 498; The Missouri Coal Oil Co. v. Hannibal & St. Joseph R. R. Co., 35 Mo. 84; Kennedy v. North Missouri R. R. Co., 36 Mo. 350; McPheeters v. Hannibal & St. Joseph R. R. Co., 45 Mo. 22; Mueller et al. v. Putnam Fire Ins. Co., 45 Mo. 84; Perkins v. Missouri, Kansas & Texas R. R. Co., 55 Mo. 201.

J. D. Johnson, for respondent, cited: Malecek v. Tower Grove & Lafayette R. R. Co., 57 Mo. 21; Buckley v. Knapp, 48 Mo. 162; Picket v. Crook, 20 Wis. 358; Wallace v. The Mayor, 2 Hilt. 440; Perkins v. Missouri, Kansas & Texas R. R. Co., 55 Mo. 201; Gillett v. Missouri Valley R. R. Co., 55 Mo. 315; Belknap v. Boston & Maine R. R. Co., 49 N. H. 358.

HAYDEN, J., delivered the opinion of the court.

This is an action to recover damages for injuries received by the plaintiff, a minor, by being thrown, as he alleged, from a wagon through the negligence of an agent of defendant, who was driving one of its transfer-wagons. The collision took place on Green Street in the city of St. Louis, between Main and Second Streets. The plaintiff was driving a horse in a light spring-wagon, westwardly, and observed one Sheedy, a driver for defendant, approaching from the west, driving a large two-horse stake-wagon heavily loaded with boxes. As Sheedy approached, the plaintiff kept his team to the north side of the street, and the testimony tended to show that there was plenty of space between the plaintiff's wagon and the south side of the street for the defendant's wagon to pass. The plaintiff's testimony was to the effect that, fearing that the transfer-wagon would run into his wagon, he stopped when the transfer-wagon was five or ten feet away; that he called out to its driver to stop, but that the driver paid no attention; that this was when the transfer-wagon was four or five feet away; that he, plaintiff, drove as near to the curb-stone as he could; that by the collision he was knocked out of his wagon into the street; that when the transfer-wagon struck his wagon its horses were at a fast walk. The defendant's driver separated the two wagons and drove immediately away. The testimony of Sheedy was to the effect that as he was driving a pair of mules attached to the transfer-wagon, which was heavily laden, toward Main Street, he noticed a wagon standing on the south side of Green Street, a little way ahead, and then the plaintiff's wagon came on at a rapid pace, striking with the hub of its front wheel the hind wheel of the transfer-wagon; that he took by the head the horse attached to the plaintiff's wagon, but did not go to the boy or assist him. His testimony tended to show that, at the place of collision, the three wagons were abreast, or on the same line north and south; that his mules were going at a walk at the time of the collision, and that he did not see the plaintiff's wagon until that team was within a foot of the head of his mules, and that he heard no call or cry from the plaintiff

The following were given as instructions on behalf of the plaintiff:

“1. If the jury believe and find from the evidence that the plaintiff, Frank Edelmann, was injured, as is alleged in the petition, by the negligence or carelessness of the defendant, its servant or employee, by the means and in the manner charged in the petition, and that he, Edelmann, did not contribute to said injury by any negligence of his own, then they will find for the plaintiff, and assess his damages in such sum as the jury believe and find from the evidence will compensate him for the injury sustained, including his necessary expenses in and about effecting a cure of his injuries, his loss of time, and his mental and bodily suffering resulting therefrom, not exceeding the sum of five thousand dollars.

2. If the jury believe and find from the evidence that the injury complained of in plaintiff's petition was caused by gross and wanton recklessness or carelessness of the defendant, its servant or employee, in driving one of defendant's teams, as is alleged in the petition, and without any fault on the part of the plaintiff, then they will find a verdict for the plaintiff, and, in addition to such sum as will compensate for the injury sustained, may give exemplary damages in such sum as the jury believe from the evidence the circumstances of the injury will warrant, in all not to exceed the sum of five thousand dollars.”

The court gave the following instructions on behalf of the defendant:

“1. If the jury find from the evidence that the carelessness, negligence, or imprudence of the plaintiff contributed directly to the injury, or that the driver of the transfer-wagon willfully caused the injury, not to promote the interests of his employers, nor within the scope of his employment, but out of malice, ill-will, or anger, and for purposes of his own solely, then the jury will find for defendant.

2. If the jury find from the evidence that the carelessness, negligence, or imprudence of the plaintiff contributed directly to the injury, they will find for the defendant, even though they should find that the driver of the wagon, by his carelessness, negligence, or imprudence, also contributed thereto in equal degree.”

The defendant asked and the court refused instructions to the effect that, if the jury found for the plaintiff, the damages could only be such as would compensate for loss of time, money expended, and actual suffering caused by the injuries; and that the jury could not give vindictive or...

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    • United States
    • Missouri Supreme Court
    • 3 Diciembre 1895
    ... ... delivered it to Prof. Chas. S. Sanger, a professor of ... chemistry in St. Louis. Dr. Mahon, who assisted the coroner ... in the post-mortem examination, testified that the ... the same connection. Britton v. St. Louis , 120 Mo ... 437, 25 S.W. 366; Edelmann v. Transfer Co. , 3 ... Mo.App. 503; Corrister v. Railroad , 25 Mo.App. 619 ... ...
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    ...to the petition to ascertain the issues which they were to pass upon. See, also, State v. David, 131 Mo. 380, 33 S.W. 28; Edelmann v. Transfer Co., 3 Mo.App. 503; Corrister v. Railroad, 25 Mo.App. The instruction in this case does not refer the jury to the answer to ascertain the issues inv......
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    ...and in no wise intrenching upon the rule that the jury are not to be referred to the pleadings for the issues involved. Edlemann v. Transfer Co., 3 Mo.App. 503; v. St. Louis, 120 Mo. 444; Sherwood v. Railroad, 132 Mo. 343; Allen v. Springfield, 61 Mo.App. 270; Lackland v. Railroad, 101 Mo.A......
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    • Missouri Supreme Court
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