Hopkins v. Mobile & O. R. Co.

• Decision Date: 06 January 1931
• Docket Number: No. 21235.,21235.
• Citation: 33 S.W.2d 1009
• Parties: HOPKINS v. MOBILE & O. R. CO.
• Court: Missouri Court of Appeals

33 S.W.2d 1009

HOPKINS v. MOBILE & O. R. CO.

No. 21235.

St. Louis Court of Appeals. Missouri.

January 6, 1931.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

"Not to be officially published."

Suit by William Hopkins against Mobile & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Carl Fox and R. P. & C. B. Williams, all of St. Louis, for appellant.

Salkey & Jones, of St. Louis, for respondent.

NIPPER, J.

Plaintiff brought suit in the circuit court of the city of St. Louis to recover damages for loss of services alleged to have been sustained by him on account of an injury to his wife, Josie Hopkins. The alleged injury occurred on the 18th of June, 1927. There was a verdict and judgment in favor of plaintiff in the sum of $1,500, and defendant has appealed.

The petition alleges that plaintiff's wife was a passenger on the defendant's train on the 18th day of June, 1927, and was injured in a derailment and wreck of the train, and that defendant was guilty of negligence under the rule of res ipsa loquitur. It is alleged that the wife sustained injuries to different parts of her body, and was confined to her bed for a period of about eight weeks, during which time she was under the care of a physician; that she suffered pain, and was incapacitated to do her household work; that her injuries were permanent; and that by reason thereof, plaintiff lost the services, society, and companionship of his wife.

The answer was a general denial.

The evidence on the part of the plaintiff tends to support the allegations of the petition, and further shows that this train was derailed near Sparta, Ill. The evidence offered on the part of the plaintiff, and uncontroverted, was that as a result of her injuries, she was compelled to remain in bed about eight weeks under the care of a doctor. At the time of the trial she was scarcely able to do anything around the house. She and her husband lived on Enright, avenue in St. Louis. He was a janitor in one of the churches of St. Louis, and she did laundry work, and kept boarders. Prior to the accident, she was in perfect health. On account of the incapacity of the wife, plaintiff's evidence showed that he had paid out items of expense for medicine, doctor bills, and so forth, amounting to about $250. There was no evidence on the part of the defendant to controvert this testimony. There was evidence offered on the part of the defendant contradicting plaintiff's testimony in some minor details with respect to the time she was treated and the extent of her disability.

The principal objection urged to the regularity of the proceedings in the trial court, and as a ground of reversal, is that the court erred in giving instruction No. 1, requested by the plaintiff, which permitted a recovery upon the hypothesis of the wife's injury alone, omitting any element necessary to be found with respect to the husband's injury and damage. This instruction is as follows:

"The Court instructs the jury that if you find and believe from the evidence that on the 18th day of June, 1927, the plaintiff's wife, Josie Hopkins, was a passenger on one of defendant's trains and that while so a passenger (if you so find) and being carried thereon upon defendant's road, the car in which plaintiff's wife, Josie Hopkins, was being carried was derailed and that plaintiff's wife, Josie Hopkins, was thereby thrown from her seat in said car and thereby injured, then the law presumes that such injuries to plaintiff's wife, Josie Hopkins, were caused by defendant's negligence and such facts, if proven by a preponderance of the evidence, make out a presumptive case for the plaintiff and you will therefore, if you so find, return a verdict for the plaintiff."

It is insisted that this instruction is...