Evers v. Wiggins Ferry Co.

• Decision Date: 22 October 1907
• Citation: 105 S.W. 306,127 Mo. App. 236
• Parties: EVERS v. WIGGINS FERRY CO.
• Court: Missouri Court of Appeals

105 S.W. 306

127 Mo. A. 236

EVERS v. WIGGINS FERRY CO.

St. Louis Court of Appeals. Missouri.

October 22, 1907.

Rehearing Denied November 19, 1907.

1. APPEAL — REVIEW — HARMLESS ERROR — EVIDENCE.

In an action against a carrier for personal injuries through the breaking of the hurricane deck of defendant's ferry boat, defendant contended that plaintiff and other passengers were on the deck against the orders of the officers of the boat. It appeared that passengers were carried on the hurricane deck of excursion boats by permission of the captain. Held, that the exclusion of evidence that the hurricane decks of excursion boats were constructed for carrying passengers, while the deck of defendant's boat was not, while erroneous, was not prejudicial, defendant's witnesses testifying to the construction of the deck, that it was not designed to carry passengers, and that all the passengers on it at the time of the accident were there without permission, and after warning to go below.

2. SAME — DISCRETION OF COURT — RECEPTION OF EVIDENCE.

Plaintiff and some of his witnesses testified in chief that they paid their fares on the return trip of the boat. The boat's officers testified that no fares were collected on the return trip. Held, that the admission in rebuttal over defendant's objections of testimony of other witnesses that they paid their fares on the return trip, while irregular practice, was within the discretion of the trial court, and not ground for reversal.

3. TRIAL — INSTRUCTIONS — CONSTRUCTION.

Instructions should be read as a whole, and a meaning should not be given to a segregated part which it would not have if read in connection with the other parts.

4. SHIPPING — NEGLIGENCE — PERSONAL INJURIES — PLEADINGS — INSTRUCTIONS.

In an action against a carrier for injuries to a passenger through the breaking of the deck of defendant's boat, the petition alleged that defendant was negligent in not building the decks strong enough to hold the passengers carried thereon, etc., and in permitting the material of the decks and on which they were supported to become rotten and too weak to support the passengers carried thereon, etc. Held, that an instruction that if the accident consisted in the falling down of the deck, and that if plaintiff's injuries resulted therefrom, the burden of proof was shifted on defendant to show that such falling down was through no fault, negligence, etc., of defendant, and, unless so shown, the jury should find for plaintiff, provided they did not further find that plaintiff was guilty of negligence in going on or remaining on the deck, was within the scope of the allegations of negligence.

5. SAME — CONTRIBUTORY NEGLIGENCE.

The instruction was not objectionable as ignoring the defense of contributory negligence.

6. SAME — MISLEADING INSTRUCTIONS.

In an action against a carrier for injuries to a passenger through the falling of the hurricane deck of defendant's boat, an instruction that, even if the jury found that some of the passengers were warned not to go on the deck, plaintiff could not be charged with negligence in going thereon unless he was aware of the warnings, or unless the condition of the deck at the time he went thereon was unsafe to a reasonably careful observer, or not meant for the use of passengers, and that, in considering whether plaintiff should have known that the deck was unsafe or not meant for passengers, the jury might consider all the physical facts regarding the approach to the deck, was not misleading as telling the jury that, after going on the deck, plaintiff might shut his eyes as to its apparent physical condition.

7. DAMAGES — EXCESSIVE DAMAGES.

Where plaintiff, about 14 years old, was injured while a passenger on defendant's boat by the breaking of a deck, sustaining a compound fracture of a bone of his leg, resulting in a running sore, permanently incapacitating him from doing laborer's work, a verdict for $4,500 was not excessive.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Action by Harry Evers, by next friend, against the Wiggins Ferry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

For former report, see 116 Mo. App. 130, 92 S. W. 118.

J. E. McKeighan and Wm. R. Gentry, for appellant. Lee Meriwether, for respondent.

BLAND, P. J.

This is the second appeal of this case. On the first appeal the judgment was reversed and the cause remanded for error in instructions given in plaintiff's behalf. See Evers v. Wiggins Ferry Co., 116 Mo. App. 130, 92 S. W. 118. The evidence on the second trial, as abstracted, is not materially different from that adduced on the first one, except the medical evidence in respect to the extent and permanency of plaintiff's injuries. The facts are fully set forth in the opinion rendered on the first appeal, and will be found at pages 133-135 of 116 Mo. App., and pages 119, 120 of 92 S. W. On the first trial the jury rendered a verdict for $2,750, and on the second the verdict was for $5,200. Pending a motion for new trial, plaintiff voluntarily filed a remittitur in the sum of $700.

1. The first assignment of error is that the court erred in overruling defendant's demurrer to plaintiff's evidence. On the former appeal, we held that plaintiff made out a prima facie case within the scope of the allegations of his petition. We see no good or valid reason to retract our former holding.

2. Plaintiff was a boy of 14 years of age at the time he was injured. He testified that he paid his fare while on the boiler deck of the boat, and was told by the person who collected his fare to go up on the hurricane deck; that he went up on the hurricane deck, and was there when it fell and caused his injury. On cross-examination of the captain of the boat, the fact was developed that passengers were carried on the hurricane deck of excursion boats by permission of the captain in command. The Church, the boat upon which plaintiff was injured, was not an excursion boat, but only a ferry boat. On redirect examination of the captain, defendant's counsel offered to prove that the hurricane decks of excursion boats were constructed with the view of carrying passengers on them, while the hurricane deck of the ferryboat Church was not constructed for that purpose. This evidence was excluded by the court, and the ruling is assigned as error. It was contended by defendant that plaintiff and other passengers were on the hurricane deck against the orders of the officers of the boat, and remained there after they were repeatedly ordered to go below, and we think the rejected evidence was proper. But, inasmuch as the construction of the hurricane deck was fully testified to by defendant's witnesses, and also that the deck was not designed to carry passengers; that all the passengers on it at the time of the accident were there without the permission of any of the officers of the boat, and, also, after having been warned to go below, we cannot see that the excluded evidence prejudiced defendant's case.

3. W. B. Blackwell and Mrs. Daisy Blackwell, over the objections of defendant, were permitted to testify in rebuttal that they paid their fare after the boat left the Illinois shore on its...