Holden v. Missouri Railroad Company

• Decision Date: 13 December 1904
• Citation: 84 S.W. 133,108 Mo.App. 665
• Parties: HOLDEN, Respondent, v. MISSOURI RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

84 S.W. 133

108 Mo.App. 665

HOLDEN, Respondent, v. MISSOURI RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 13, 1904

Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.

AFFIRMED.

STATEMENT.

In December, 1897, a wagon on which plaintiff was being driven down Pine street, in the city of St. Louis, was struck, at the intersection of Pine and Thirteenth streets, by one of defendant's street cars travelling on Thirteenth street and plaintiff was thrown from the seat to a granite pavement eight feet below, alighting on his head. A deep gash, six to eight inches in length, on the right side of his head, and other scalp wounds, were the resulting injuries. The suit is to recover the damages caused by the accident.

Three distinct acts of negligence are alleged in the petition First, the violation of the ordinance limiting the speed of street cars to ten miles per hour in the district where the accident occurred; second, violation of what is known as the vigilant watch ordinance; third, negligence in operating the car at a careless and negligent rate of speed.

In respect to the damages, the petition alleges:

"That prior to said injury plaintiff was a strong and healthy man employed and earning the sum of $ 14 per week; that on account of such injury he was confined to his bed for a number of weeks and was unable to resume his employment, for a period of seven weeks and was obliged to, and did, expend and become liable for a large sum of money for physicians' and surgeons' services, medicines and supplies necessary to promote his recovery, has suffered and will continue to suffer great bodily and mental pain, is disfigured for life, practically deaf in one ear, and his capacity for following his vocation of machinist is lessened; all to plaintiff's damage in the sum of $ 5,000.

"Wherefore, plaintiff prays judgment against the defendant for the sum of $ 5,000 and costs."

The answer was a general denial and a plea of contributory negligence.

In respect to the accident itself, the evidence offered by plaintiff tended to prove the three several acts of negligence alleged in the petition, that offered by the defendant tended to show that the operators of the car were not guilty of any negligence whatever. In respect to the extent and duration of plaintiff's injuries, the evidence offered in his behalf tended to show that at the time of the accident he was a powerful, robust, healthy man, weighing two hundred pounds, and for a number of years previous had been constantly employed at work as a machinist. At the trial he was greatly reduced in weight, had lost much of his physical strength, his sense of feeling was greatly impaired, his eyesight had greatly failed him, he was entirely deaf in his right ear (over which the principal injury was inflicted) and the hearing of his left ear was affected. The evidence tended to show that these injuries resulted from his fall from the wagon to the street.

The evidence offered by defendant tended to show that the impairment of plaintiff's hearing resulted from catarrh. Plaintiff testified that the injury caused his deafness.

On cross-examination, Dr. Bradley, introduced by plaintiff as an expert, was asked the following question:

"Q. Supposing this to be a fact, Doctor, that some time prior to Mr. Holden calling on you he was thrown from a wagon some six or eight feet above the surface of the ground and fell on his head, on the right side, and fell a distance from the seat down to the ground, the surface of the ground was covered with granite blocks, a cut resulted extending from about this portion of his head (indicating) back six inches (right side), from which he was confined to his house about seven weeks, and just after that a deafness resulted in his right ear, state whether or not under those circumstances you believe that fall caused such injury as the result as you found in your examination?"

Defendant objected to the question for the reason "it calls for two opinions; one of them founded on his personal examination, the other founded on the hypothesis, and counsel insists that they be separated; that his answer to the hypothesis be confined to that, and when testifying from the examination that he be confined to that."

The objection was overruled, to which ruling defendant duly objected and excepted, and the witnesses answered the question as follows:

"Such a cause might result in a deafness; it might be simply temporary and it might be permanent; and as to the discharge why it would have to be the impairment; and as to that why I couldn't say positively about whether this resulted, this purulent discharge, if there was an injury for that, there was a cause, a mastoid, or inflamed mastoid cells."

The court gave the following instruction on the measure of damages:

"If you find for the plaintiff, your verdict will be for such amount, not to exceed five thousand dollars, as you believe from the evidence will compensate him for such loss of earnings or decreased earning capacity, if any, as you may find to have resulted from the injury, or as will directly result in the future therefrom, and for such pain of body and mind, or physical inconvenience, if any, as you may find plaintiff to have suffered, or that he will be likely to suffer in future by reason of such injury."

The court instructed the jury that nine of its number might make a verdict. In this connection the defendant asked, but the court refused, the following instruction:

"By another instruction the court has told you under what circumstances nine or more of your number may return a verdict and as to how the same shall be signed. In connection with said instruction given you, you are further instructed that before you are authorized to return a verdict for plaintiff in this action, it is necessary that nine or more of you shall find from the evidence and agree that defendant was guilty of at least one of the specific grounds of negligence submitted to you for your determination, and that it is not sufficient that nine of your number agree to find for plaintiff, when the nine so agreeing differ as to the specific act or acts of negligence of which they find defendant guilty."

A verdict (concurred in by all the jury) finding for plaintiff and assessing his damages at $ 3,000, was returned. After unavailing motions for new trial and in arrest, defendant appealed to this court.

Judgment affirmed.

Boyle Priest & Lehmann, George W. Easley and Crawley & Jamison for appellant.

The circuit court erred in giving plaintiff's instruction marked "5-P," on the measure of damages. Complaint is here made particularly of the concluding clause, which authorizes recovery "for such pain of body or mind, or physical inconvenience, if any, as you may find plaintiff to have suffered, or that he will be likely to suffer in the future by reason of said injury." A commission to award prospective damages is vague enough even when confined to consequences which will actually and naturally flow from the supposed injury. But when such a commission is judicially supplied with wings in order to enable a jury to sail into unexplored regions of mere likelihood and possibility, the damages brought back upon the return flight of the jury's imagination are too speculative for even a street railway company to have to pay. Russell v. Columbia, 74 Mo. 480; Bradley v. Railway, 138 Mo. 301, 39 S.W. 763; Chilton v. St. Joseph, 143 Mo. 199, 44 S.W. 766; Bigelow v. Railway, 48 Mo.App. 374; Ross v. Kansas City, 48 Mo.App. 446; Fry v. Railroad, 45 Iowa 416; White v. Railway, 61 Wis. 636, 50 Am. Rep. 154; Hardy v. Railway, 89 Wis. 187, 61 N.W. 771; Kucera v. Lumber Co., 91 Wis. 637, 65 N.W. 374; Cameron v. Trunk Line, 10 Wash. 507, 39 P. 128; Meeteer v. Railway, 63 Hun 533, 18 N.Y.S. 561; Curtis v. Railroad, 18 N.Y. 534, 75 Am. Dec. 258; 3 Sutherland on Damages (Ed. 1884), p. 261; 1 Sutherland on Damages (3 Ed.), sec. 123, and vol. 3, sec. 944; 1 Joyce on Damages, secs. 244-245; Voorheis on Damages, p. 72, sec. 46; Watson on Personal Injuries, secs. 302-303; Schwend v. Transit Co., 80 S.W. 40.

Richard A. Jones for respondent.

(1) The instruction complained of by defendant correctly declares the law and limits the jury in their assessment of damages to consideration of only those consequences of the injury which will probably result from it in the future. (2) There is no roving commission conferred upon them to take into consideration in making up their verdict consequences which may continue in the future, but only those which are reasonably certain. In the following cases, the use of the word "likely," as defining the degree of certainty which is to guide the considerations of the jury in determining future damage is expressly approved. Railway v. Davidson, 76 F. 524; McLain v. Railway, 100 Mo.App. 386, 73 S.W. 909; Scott Tp. v. Montgomery, 95 Pa. St. 444; Corliss v. Railway, 70 Barb. 291; Knoll v. Railway, 62 N.Y.S. 16; s. c., 168 N.Y. 592; 1 Sedgwick on Damages (3 Ed.), sec. 173; 1 Sutherland on Damages (3 Ed.), sec. 123. (3) No objection is made by appellant because the petition states more than one negligent act as the cause of injury and that each of said breaches of duty is not contained in a separate count. Indeed, appellant admits that all of said charges of negligence, contributing to the same injury for which respondent seeks recovery, are properly joined in one count, and such is the rule of practice. Oglesby v. Railway, 150 Mo. 155; Rissler v. Ins. Co., 150 Mo. 373, 51 S.W. 755; Comstock v. Davis, 51 Mo. 569; Newton v Miller, 49 Mo. 298; Hotel Co. v. Sigement, 53 Mo. 177. (4) This is a sufficient answer to the contention that the jury must make separate findings on each issue of...