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

• Decision Date: 15 December 1920
• Docket Number: No. 21987.,21987.
• Parties: HOOVER v. ST. LOUIS ELECTRIC TERMINAL RY. CO.
• Court: Missouri Supreme Court

227 S.W. 77

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

No. 21987.

Supreme Court of Missouri, Division No. 2.

December 15, 1920.

Rehearing Denied December 30, 1920.

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

Action by Thos. A. Hoover against the St. Louis Electric Terminal Railway Company and another. From judgment for plaintiff against it, the named defendant appealed to the St. Louis Court of Appeals, which, after reversing and remanding (216 S. W. 984), certified the case to the Supreme Court. Judgment of the trial court affirmed.

On November 23, 1912, plaintiff was a passenger on the 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, while seated within the body of the electric car of appellant, said car collided with a freight train, as it was crossing an intersecting railroad track and, as a result of this collision, plaintiff alleges that he was injured. He charges in his amended petition:

"That said collision was directly due to and caused by negligence on the part of said electric companies, which owned and operated said electric car."

The answer of defendant St. Louis Electric Terminal Railway Company admits that said company owned and operated the electric car upon which plaintiff was a passenger on November 23, 1912, but denies every other allegation of the second amended petition. The St. Louis Merchants' Bridge Terminal Railway Company filed a demurrer to the evidence at the close of plaintiff's case. The demurrer was overruled, and said defendant stood upon same.

At the close of the entire case the jury returned a verdict in favor of said defendant St. Louis Merchants' Bridge Terminal Railway Company, and against the St. Louis Electric Railway Company, for the sum of $3,000.

The latter defendant appealed the cause to the St. Louis Court of Appeals. In an opinion filed by Judge Becker, and concurred in by Judge Reynolds, the cause was reversed and remanded, on account of the instruction given at the instance of plaintiff in respect to the measure of damages, etc. The opinion of Judge Becker will be found reported in full in 216 S. W. at pages 984 and following. Judge Allen, in a dissenting opinion, reported in 216 S. W. at pages 986 and following, affirmed the action of the trial court. On his dissent, the case was certified here, because of the alleged conflict between the majority opinion and the opinions rendered by the Supreme Court in State ex rel. United Rys. Co. v. Reynolds et al., 257 Mo. 19, 165 S. W. 729; Powell v. Railroad, 255 Mo. 420, 164 S. W. 628; and Sang v. City of St. Louis, 262 Mo. 454, 171 S. W. 347, and other cases.

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

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

RAILEY, C. (after stating the facts as above).

1. Appellant contends that plaintiff's second amended petition, upon which the case was tried, fails to state a good cause of action.

Without setting out the details of said petition, we find, among other allegations therein, the following:

"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 petition states a good cause of action. Sweeney v. Ry. Co., 150 Mo. 385, 51 S. W. 682; Allen v. St. Louis Transit Co., 183 Mo. loc. cit. 433, 434, 81 S. W. 1142; Roscoe v. Ry. Co., 202 Mo. 576, 101 S. W. 32; MacDonald v. Railroad, 219 Mo. 468, 118 S. W. 78, 16 Ann. Cas. 810; Price v. Met. St. Ry. Co., 220 Mo. 435, 119 S. W. 932, 132 Am. St. Rep. 584; Stauffer v. Railroad, 243 Mo. loc. cit. 325, 326, 147 S. W. 1032; Stofer v. Harvey et al. (App.) 204 S. W. 587; Malone v. St. L. & S. Ry. Co., 202 Mo. App. 489, 213 S. W. 864.

2. Appellant contends that the trial court committed reversible error in giving to the jury instruction No. 12, in behalf of plaintiff, which 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 any 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 $10,000."

No other instruction was asked by plaintiff, and no other was given in his behalf relating to the question of damages. Appellant asked no instruction on this subject, nor did it ask the Court to withdraw from the consideration of the jury any of the testimony relating to plaintiff's injuries, or in respect to the damages claimed to have been sustained by him. The majority opinion, written by Judge Becker, and concurred in by Judge Reynolds, reversed and remanded the cause for a new trial, on account of the giving of said instruction (216 S. W. loc. cit. 985, 986). Judge Allen dissented, in an opinion filed (216 S. W. 986, 987, 988, 989), and certified the case to this court.

In our opinion, the evidence is undisputed that plaintiff was injured to some extent in the collision, while a passenger on appellant's train. As a part of the pleadings, and at the commencement of the trial, the following stipulation was read to the jury, without objection:

"It is hereby stipulated by and between the plaintiff and the defendants St. Louis Electric Terminal Railway Company * * * that, for the purpose of this suit only, the said defendant St. Louis Electric Terminal Railway Company owned and operated the electric trolley car described in the plaintiff's petition at the time of its collision with the train of cars of the Terminal Railroad Association of St. Louis in the city of Venice, Ill., in which Thomas Hoover was riding as a passenger on the 23d day of November, 1912, in which said collision Thomas Hoover was injured." (Italics ours.)

It was duly signed by counsel for plaintiff and appellant.

In Pratt v. Conway, 148 Mo. loc. cit. 299, 49 S. W. 1030, 71 Am. St. Rep. 602, Judge Gantt, speaking for this division, said:

"It has been ruled again and again that, where counsel in their opening statements state or admit facts the existence of which precludes a recovery by their clients, the courts may close the case at once, and give judgment against the clients. * * *

"There is another view to take of this admission. Where a cause is so conducted that the court and counsel may rightly and do infer that certain facts are conceded or admitted, the court may so treat them for the purpose of the instructions." (Italics ours.)

To the same effect are the following authorities: Taylor v. Iron Co., 133 Mo. loc. cit. 365, 366, 34 S. W. 581; St. Louis v. Babcock, 156 Mo. loc. cit. 157, 56 S. W. 731; Tootle v. Buckingham, 190 Mo. loc. cit. 195, 196, 88 S. W. 619; Phelps v. Zinc Co., 218 Mo. loc. cit. 580, 581, 117 S. W. 705; State v. Levy, 262 Mo. loc. cit. 191, 170 S. W. 1114; Steele v. Railroad, 265 Mo. loc. cit. 115, 116, 175 S. W. 177.

In addition to above stipulation we find, in turning to the evidence, that plaintiff testified in chief, without objection or interruption, as follows:

"The first I realized I was thrown violently against the corner of the seat. It seemed to mash this seventh or eighth rib in and force my bowels out; made me sick at my stomach. I, of course, was all dazed, and I really didn't realize how much I was injured at the time. * * * After the accident, inside of 48 hours I noticed two prominent places here in my groin about the size of pigeon eggs. When I would stand up they would stand out, and when I would lie down they would go back. I never thought much of it. They didn't give me any trouble at first. My side gave me some pain, trouble from the start. * * * I suffered pain in my side extremely for about six months, but it got better, of course. The condition in my groin has not improved since then. It is much worse now. The protuberances in my groin are larger. I notice it particularly if I allow myself to get costive. In straining it makes me sick at my stomach. It seems like a bowel comes out and hurts me extremely. I did not have those lumps before the accident. I did not have any depression in my left...