Friend v. Missouri Pacific Ry. Co.

• Decision Date: 09 November 1885
• Citation: 19 Mo.App. 329
• Parties: WILLIAM COOK BY NEXT FRIEND, Respondent, v. THE MISSOURI PACIFIC RAILWAY CO., Appellant.
• Court: Missouri Court of Appeals

19 Mo.App. 329

WILLIAM COOK BY NEXT FRIEND, Respondent,

v.THE MISSOURI PACIFIC RAILWAY CO., Appellant.

Kansas City Court of Appeals, Missouri.

Nov. 9, 1885.

APPEAL from Cooper Circuit Court, HON. E. L. EDWARDS, Judge.

Affirmed.

The material facts are stated in the opinion of the court.

WM. S. SHIRK and THOMAS J. PORTER, for the appellant.

I. The demurrer to plaintiff's case admitted defendant's negligence, but this alone does not necessarily entitle him to recover. When plaintiff's own evidence discloses the facts as to his contributory negligence, as in this case, it is immaterial what the allegations of the answer are.

II. There was error in plaintiff's instruction as to the measure of damages. It was necessary to be more specific to entitle plaintiff to recover for any mental anguish, and show that it naturally and necessarily resulted from the physical injuries. We concede that damages, which are the natural and necessary consequences of the injury, are recoverable, without a special averment of prospective damages, but anything more than that is special and must be specifically alleged and proved. But the petition does not state such facts in this case.

DRAFFEN & WILLIAMS, for the respondent.

I. There was no error in overruling the demurrer to the evidence. The defendant's negligence was clearly proven, and in fact it was not disputed. There was no proof of contributory negligence, and such as was pleaded was disproved. Johnson v. Chicago, R. I. & Pac. Ry. Co., 77 Mo. 546.

II. The plaintiff's instruction was unobjectionable. It submitted the question of defendant's negligence, and also of plaintiff's alleged contributory negligence, to the jury, as fairly as defendant could ask.

III. There was no error in plaintiff's instruction as to the measure of damages. It was not necessary that the averments should be more specific. Nor was it necessary to specially plead it. Mental suffering is considered to be so much the plain and natural consequence of the injury, that damages may be recovered therefor, without any special allegation of it in the complaint. 2 Thompson on Neg. 1258, sect. 5; Porter v. Hannibal & St. Jo. R. R., 71 Mo. 66; Russell v. Town of Columbia, 74 Mo. 480.

IV. There was no error in admitting the evidence of physicians as to the nature and extent of the plaintiff's injury. It was certainly competent to do this. The gist of the action is the injury to the person, and the prospective damages are considered to be immediate and natural consequences of the injury. Bradbury v. Benton, 69 Mo. 194; Tyson v. Booth, 100 Mass. 258; Russell v. Columbia, 74 Mo. 480.

V. Defendant's instructions were properly refused, and the errors assigned by it are wholly devoid of merit.

PHILIPS, P. J.

This is an action to recover damages for personal injury. The controlling and material facts, as disclosed at the trial, are substantially as follows: The plaintiff, a minor about eleven years old, was sent by his employer with a wagon drawn by two mules to a field after corn. To reach the field plaintiff had to cross defendant's railroad track. This crossing was a public highway. At the point of intersection both the railroad and the highway pass through a deep cut almost at right angles to each other. The evidence showed that plaintiff's employer cautioned him on setting out, to look out for any train that might be on said railroad. The uncontradicted evidence is, that the most eligible, if not the only proper place, at which to stop, before entering on the railroad track, to take observations for an approaching train, was forty or fifty yards from the track, and just before entering the cut of the public highway leading on to the track. At this point of observation an approaching train could be seen eighty rods, and the signals best heard. The testimony was that the plaintiff did stop at this point, and did both look and listen for any train that might be approaching. Neither seeing nor hearing one, he proceeded at once to effect the crossing. It was down grade, and he went at a slow trot. While in this cut the opportunities for hearing a train were diminished, and the view of one was cut off. Just as plaintiff's team reached the track the cars dashed upon him, killing the mules and seriously crippling the plaintiff. The evidence further showed, without contradiction, that the defendant, on approaching this crossing, neither rang the bell nor sounded the whistle required to be attached to its engine, as by statute provided.

The plaintiff recovered judgment, and the defendant has appealed.

I. The first question raised by appellant is, that under the evidence the plaintiff should have been nonsuited, on the ground that he was guilty of contributory negligence. Wherein this case differs materially from that of Johnson v. Ry. Co. (77 Mo. 546), except that it be a stronger case for the plaintiff, I am unable to discover. The plaintiff stopped and listened at the only eligible place to see and hear. This was so near the track of the railroad as to justify any reasonable person similarly situated, in believing that, at the speed the plaintiff went, he would clear the track before a train would approach. Having started into the cut, it was solely a question for the jury as to whether prudence and common sense would not dictate that the course of safety was to proceed right on without halting again in so precarious a situation. Moberly v. R. R. Co. (17 Mo. App. 518). At all events this...