Hoover v. St. Louis Electric Terminal Ry. Co.

• Decision Date: 02 December 1919
• Docket Number: No. 15419.,15419.
• Citation: 216 S.W. 984
• Parties: HOOVER v. ST. LOUIS ELECTRIC TERMINAL RY. CO.
• Court: Missouri Court of Appeals

216 S.W. 984

HOOVER v. ST. LOUIS ELECTRIC TERMINAL RY. CO.

No. 15419.

St. Louis Court of Appeals. Missouri.

December 2, 1919.

Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.

"Not to be officially published."

Action for personal injuries by Thomas A. Hoover against the St. Louis Electric Terminal Railway Company and another. Judgment for plaintiff against the named defendant, from which it appeals. Reversed and remanded. On request of Allen, J., who deems the decision contrary to decisions of the Supreme Court, case certified to Supreme Court.

Burton & Hamilton, of Peoria, Ill., and Anderson, Gilbert & Hayden, of St. Louis, for appellant.

Holland, Rutledge & Lashly and Geo. E. Mix, all of St. Louis, for respondent.

BECKER, J.

This is an appeal from a judgment in the sum of $3,000, rendered in favor of plaintiff and against one of two defendants in a suit for damages for personal injuries. On November 23, 1912, plaintiff below was a passenger upon an interurban electric train running from St. Louis, Mo., to Carlinville, Ill. While thus a passenger for hire, and at about 20 minutes past 5 o'clock in the morning, and while seated within the body of the electric car of the appellant, the said electric car collided with a freight train as said electric car was crossing over an in, tersecting railroad track, and as a result of this collision plaintiff alleges he was injured.

Plaintiff's suit was against the St. Louis Merchants' Bridge Terminal Railway Company and the appellant, St. Louis Electric Terminal Railway Company. Plaintiff's second amended petition, after containing allegations with respect to the incorporation and business of the respective parties defendants, alleges, with considerable particularity, the negligence on the part of the defendant St. Louis Merchants' Bridge Terminal Railway Company, complaining and charging said company with having violated various statutes of the state of Illinois, all of which were set out in said amended petition. The allegations as to this appellant are in the following language:

"Plaintiff states that on said date, while the said electric trolley car upon which plaintiff was riding as a passenger was proceeding over said crossing, as aforesaid, there was a violent collision between said electric trolley car and an engine and train of cars operated on said tracks of said Terminal Railroad and railway companies over said crossing, and plaintiff states that as a direct result of said collision he sustained divers personal injuries as more particularly hereinafter set out, and plaintiff states that said collision was directly due to and directly caused by negligence on the part of said electric companies, which owned and operated said electric car."

The answer of appellant (defendant below) admits that it owned and operated the electric car in question, and denies each and every other allegation in said petition. The St. Louis Merchants' Bridge Terminal Railway Company filed a demurrer at the close of the plaintiff's case, which being overruled, said defendant stood upon its demurrer. At the close of the entire case, on being submitted to the jury, a verdict was returned in favor of tile defendant St. Louis Merchants' Bridge Terminal Railway Company, and against the defendant St. Louis Electric Terminal Railway Company, in the sum of $3,000. After unavailing motions for a new trial and in arrest of judgment, the defendant St. Louis Electric Terminal Railway Company brought this appeal.

I. Appellant seriously contends that the second amended petition, upon which the case was tried below, is wholly lacking in any averment of negligence on its part which caused the trouble complained of; that the only time the word "negligence" is used in plaintiff's petition, as applied to this appellant, is in the following paragraph:

"That said collision was directly due to and directly caused by negligence on the part of said electric companies."

And defendant urges that this allegation is a mere conclusion and amounts to nothing. An examination of the second amended petition, however, shows that it alleges the relation of carrier and passenger for hire, and that plaintiff was injured during that relation, caused by a collision between the electric car of the defendant carrier with freight cars of another defendant carrier, and "that said collision was directly due to and directly caused by negligence on the part of" this particular defendant carrier. The act alleged, namely, the collision between this defendant's car and cars of another defendant, raised a presumption of negligence, and it is sufficient to follow the allegation of such facts with a charge of negligence in general terms. Allen v. Transit Co., 183 Mo. 411, loc. cit. 433, 434, 81 S. W. 1142, and cases cited. We therefore rule plaintiff's petition states a cause of action against this appellant.

II. The plaintiff requested but one instruction, and that upon the measure of damages, which the court gave. The practice of plaintiffs submitting a case to the jury without full instructions, but merely upon an instruction as to the measure of damages, should not be encouraged. This particular instruction, which is attacked on several grounds, reads as follows:

"If the jury find for the plaintiff, they should assess his damages at such sum as they believe from the evidence will be a fair compensation to him, subject to the limitations of the other instructions given herein:

"First. For pain of body or mind which the plaintiff has suffered or will suffer by reason of his injuries and directly caused thereby.

"Second. For any expenses for medical or surgical attention which the plaintiff has necessarily incurred or will hereafter necessarily incur, directly caused by said injuries, in seeking relief therefrom.

"And you will assess his damages at such sum as will, in your judgment, under the evidence, reasonably compensate him for such injuries, not exceeding the sum of ten thousand ($10,000.00) dollars."

A. Appellant directs attention to the fact that the first paragraph of the instruction closes with the words "subject to the limitations of the other instructions herein," while no other instructions were given on the part of the plaintiff.

While that phrase is not necessary to complete this instruction, it certainly cannot be viewed in a light of reversible error. Though it is true no other instructions were given at the request of plaintiff, an examination of the record discloses that there were nine other instructions submitted to the jury. Each and every instruction is subject to the limitations of every other instruction given, and all instructions must be read together, and must be harmonious with each other. We hold this point to be without merit.

B. It is complained that this instruction assumes that plaintiff's "injuries" were the result of the collision; whereas, the question as to the nature, kind, character, and extent of any injuries that plaintiff may have received was a disputed question of fact, which should have been submitted to the jury. After a thorough consideration of the whole record, we are of the opinion that this point is well taken. Respondent admits that the instruction assumes that the plaintiff was injured in the collision, but, inasmuch as there was no dispute but that the plaintiff suffered some injury, argues that such assumption is not reversible error. To this, however, we cannot agree.

While a reading of the testimony shows that it was not disputed but that the plaintiff suffered some injury by reason of the collision, such admitted injuries, however, suffered by the plaintiff, were inconsequential, and not of a serious character; and it cannot be controverted but that the sole injury which plaintiff alleged that he had suffered by reason of the accident, which would support the verdict of $3,000 in this case, was plaintiff's alleged double bubonocelo, referred to as an inguinal hernia, and that practically the defendant's whole defense was directed to combating the plaintiff's contention that such double bubonocele was caused by or was the result of injuries sustained by him in the collision. And furthermore it is to be remembered that plaintiff offered no instruction setting forth the facts which it was necessary for the jury to find from the evidence in order to recover, and that plaintiff's sole instruction was on the measure of damages, and simply directed the jury that, if they find for plaintiff, they should assess his damages "for any pain of body or mind which the plaintiff has suffered or will suffer by reason of his injuries and directly caused thereby," and that the jury thereunder returned a verdict for 83,000. It is therefore in the light of such a record that we must scan the instruction complained of.

When all the evidence in this case is considered, even in the light most favorable to plaintiff, it is exceedingly doubtful as to whether his double bubonocele was the result of the collision. According to plaintiff's own testimony, after the collision he proceeded upon another car of the defendant company to Carlinville, Ill., where he went to the office of Dr. Bell, one of the regular physicians for the company, who made an examination of him. The only thing about which plaintiff complained to Dr. Bell was that his chest felt a little sore. Plaintiff stayed in Carlinville several hours, attending to matters of business, and then returned to St. Louis. It was 48 hours after the accident before plaintiff noticed two small lumps in his groin. He testified that he did not know what they meant, and although a week after the accident he consulted Dr. Denby about the soreness in his chest, and continued under the treatment of the said Dr. Denby off and on until the 28th day of June, 1913, yet he at no time told Dr. Denby of these protuberances, nor during all of that time did it occur to him that they might have been caused by the collision....