Flaherty v. St. Louis Transit Co.

• Decision Date: 27 November 1907
• Parties: FLAHERTY v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

106 S.W. 15

207 Mo. 318

FLAHERTY v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. DAMAGES — EXCESSIVE DAMAGES.

In an action for personal injuries, it appeared that plaintiff was an unmarried woman, 33 years of age, in good health, earning $5 per week as a domestic; that blood poisoning set in soon after the injury, and plaintiff's physical condition made amputation impossible for over two months; that both flesh and bone of her foot sloughed away, finally necessitating amputation; that the injured limb would be two inches shorter than the other, necessitating a halting walk; that her doctor bill was $500; that she was bedridden for several months and was bound for expenses for medicine and nursing. Held, that a judgment for $7,500 was not so excessive as to warrant setting it aside.

2. CARRIERS — INJURY TO PASSENGER — INSTRUCTIONS — CONFLICTING THEORIES — PRESENTATION.

In an action against a railway company for injuries to a passenger, where plaintiff's testimony tended to show that the car had stopped at the proper place to receive passengers, that there was an implied invitation to enter, that while she, in the usual way and with proper care, was entering the car, there was a

sudden movement forward throwing her down with one foot under the wheels, and defendant's testimony tended to show either that plaintiff was forced against and under the car by a crowd pushing to get on, or that she negligently undertook to mount a moving car before it reached the stopping place, and was injured by her own inadvertence, each party was entitled to instructions on their respective theories of the case.

3. TRIAL — INSTRUCTIONS — SUFFICIENCY.

An instruction ought not to be read as if it stood solitary and alone, independent of other instructions, neither should a general instruction covering the whole case ignore essential elements of the case made.

4. SAME — GENERAL INSTRUCTIONS.

An instruction which puts certain facts to the jury, and tells them that if they find that way plaintiff is entitled to recover, is a general instruction.

5. CARRIERS — ACTION FOR INJURY TO PASSENGERS — INSTRUCTIONS — CONSTRUCTION.

A general instruction for plaintiff, which, among other things, charged that, if defendant's servants in charge of the car received plaintiff as a passenger thereon, and if while she was on the run-board thereof, etc., they caused or suffered the car to start and move forward, etc., in the absence of contributory negligence, plaintiff could recover, in effect requires the jury to find that plaintiff was invited to enter the car, and had accepted the invitation, and is not open to the objection that it permits plaintiff to recover without a finding that the car had stopped when plaintiff sought to enter.

6. TRIAL — INSTRUCTIONS.

If the instruction was vague as to requiring the jury to find that the car had stopped when plaintiff attempted to board it, in order to recover, the jury could not be misled, where other instructions plainly required them to find that the car had stopped at a point where defendant usually received passengers, to entitle plaintiff to recover, and further charged that plaintiff must establish by the greater weight of evidence that she received the injuries in the manner she alleged, and that otherwise the verdict must be for defendant, and that, before they found for plaintiff, they must find she got on the run-board when the car was stopped, and that her injury must be found to be the result of a subsequent forward movement, and that if plaintiff was in a crowd, which was trying to board the car before it stopped, and plaintiff, notwithstanding warnings, attempted to board the car before it stopped, etc., or if the pressure of the crowd, combined with her attempt, threw her under the wheels, or if it was a mere accident without fault on either side, she could not recover.

7. SAME — SUDDEN JERKS — DANGER OF POSITION.

Where plaintiff's testimony placed her with one foot on the run-board of an electric car and one on the floor of the car raising herself to pass into it at the time the car started up, it is not error in presenting her theory to assume that plaintiff was in a position of danger at the time of the alleged start.

8. SAME — REFUSAL OF INSTRUCTIONS — ELEMENTS ALREADY GIVEN.

Refusal of an instruction is not error when the vital elements thereof have been given in other instructions.

9. DAMAGES — MEASURE OF DAMAGES — NURSING.

Where there is proof that plaintiff remained for a few days at a hospital and was there attended by a nurse, who was a stranger to her, expense of nursing was a proper element of damages.

10. TRIAL — INSTRUCTIONS — MORE SPECIFIC INSTRUCTIONS — REQUESTS — NECESSITY.

Where there is evidence of nursing at a hospital by a stranger, as well as by a sister at her home, and the value of nursing generally is shown, in the absence of a request limiting recovery to nursing at the hospital, it is not error to give a general instruction permitting recovery for nursing, since the fault, if any, was in nondirection, and not misdirection.

11. SAME — NURSING — LIMITATION AS TO AMOUNT.

In an action by a passenger for injuries, where the petition asks no specific amount under any head or item of damages, but the elements of damage are set forth with particularity, and a general verdict is prayed covering them all, an instruction putting the question of damages to the jury, as the petition did, is not bad, in the absence of a request for a more specific instruction.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Kate Flaherty against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle & Priest and Glendy B. Arnold, for appellant. A. R. Taylor and Albert E. Hausman, for respondent.

LAMM, J.

Plaintiff had judgment, nisi, for $7,500 in an action for negligence. From that judgment, the defendant appeals here.

The petition charges, and the proof shows, that defendant, on the 12th day of June, 1904, was a corporation operating a railroad and the cars running thereon to Creve Coeur Lake, in St. Louis county. It is further charged, as follows: That "whilst defendant's in-bound car was stopped at said place to receive passengers therein, the plaintiff was by defendant's servants in charge of said car received as a passenger thereon, and whilst she was on the run-board or step of said car, and whilst she was stepping from said run-board or step of said car, up and into said car, to a seat on said car or a place to ride in security on said car as a passenger, and before she had a reasonable time or opportunity to reach a seat or place to ride in security on said car, defendant's servants in charge of said car negligently caused and suffered said car to start and move forward and to sustain a severe shock, whereby plaintiff was thrown from her said position on said car to the ground, and her left foot was thereby thrown under the wheels of said car and so badly mangled as to require amputation of all the foot except the heel. Plaintiff was thereby otherwise injured both externally and internally. That by her injuries so sustained plaintiff has suffered and will suffer great pain of body and mind, has been and will be permanently disabled from labor, and has lost and will lose the earnings of her labor, and has incurred and will incur large expenses for medicines and for medical and surgical attention and nursing, and has been permanently maimed and rendered a cripple for life, to her damage in the sum of $25,000, for which sum she prays judgment." The answer was a general denial, and, further, "that plaintiff's alleged injuries were caused by her own negligence directly contributing thereto, in attempting to board a moving car, before same had come to a stop for the purpose of receiving passengers."

The uncontradicted testimony tends to show that defendant's railroad runs from the city of St. Louis to Creve Coeur Lake, some distance in the country, via Delmar Garden; that there was an aggregation of so-called fetching allurements there, besides a possible pleasing prospect of land and water, to wit, a scenic railroad or "switchback," popcorn and peanut stands, etc.; that at the entrance of said switch-back defendant's track makes a loop which outgoing cars pass around, and, when turned towards the town, become incoming cars. As we grasp it, the place for receiving and discharging passengers is at a platform after the cars have passed around this loop. There is evidence indicating this was a Sunday evening, and as many as 2,000 or 3,000 people were at Creve Coeur Lake for an outing. Plaintiff, an unmarried woman, in good health, was a domestic in the service of Mrs. Shannon at a weekly wage of $5. Late in the afternoon, at about 4 p. m., a Mrs. From, Mrs. Shannon, and Miss Flaherty boarded one of defendant's cars and rode to Creve Coeur Lake. They remained there until about 9 p. m. The evening was fine and the locus in quo well lighted. So, too, there is no dispute as to the character of the injuries received by plaintiff. In that regard, the record shows she proved the allegations of her petition. She was permanently injured. Her left leg, the injured one, is two inches shorter than the other, and her foot was amputated at the heel; the lower extremity of the tibia and fibula and calcaneum (heel bone) being sawed off. Her doctor's bill is $500. She was bedridden for several months and is confessedly bound for expenses for medicines. Having remained for a few days at St. John's Hospital, she was taken to the home of a married sister, and there nursed day and night while helplessly bedridden. At St. John's she was attended by one of the nurses employed there. There is no testimony she was nursed at her sister's home by any one, save her sister, or members of her sister's family. There is no testimony she had been a member of that family. To the...