O'Keefe v. United Rys. Co.

• Decision Date: 30 April 1907
• Citation: 101 S.W. 1144,124 Mo. App. 613
• Parties: O'KEEFE v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

101 S.W. 1144

124 Mo. A. 613

O'KEEFE v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

April 30, 1907.

Rehearing Denied May 14, 1907.

1. APPEAL—ISSUES IN LOWER COURT—SCOPE—REVIEW.

Where, in an action against a street railway company for injuries to a person on its track, defendant's counsel in his opening statement stated that the motorman could not see plaintiff within a sufficient distance to stop the car, and that it was a question of the motorman not being able after seeing plaintiff to stop the car in time to avoid the accident, defendant, on appeal from a judgment against it, could not urge that there was a failure to prove that it either owned or operated the railroad or car.

2. SAME—HARMLESS ERROR—ERRONEOUS ADMISSION OF EVIDENCE.

Where, in an action against a street railway company for injuries to a person struck by a car, there was substantial evidence on the question of the negligence of defendant in failing to observe plaintiff on the track and to check the car in time to avoid the accident, the error, if any, in admitting the testimony of an expert on the question of the distance a car would move before it could be stopped because of the insufficiency of the hypothetical question propounded, was not prejudicial.

3. SAME.

The error, if any, in the admission of a deposition on the ground that the party offering it had failed to show the nonresidence of the witness, was harmless, where his testimony only tended to prove a fact otherwise established by competent and uncontroverted evidence, and the court could not, under the express provisions of Rev. St. 1899, § 865 [Ann. St. 1906, p. 812], reverse the judgment on that ground.

4. DAMAGES — PERSONAL INJURIES — MEASURE OF DAMAGES—INSTRUCTIONS.

An instruction on the measure of damages for personal injuries that the jury will award plaintiff such sum as shall compensate him for the mental and bodily pain and suffering endured by him consequent on the injury, and for the mental and bodily pain "which may be suffered by plaintiff in the future by reason of such injuries, if any, and for any permanent injuries suffered by plaintiff, if * * * he has suffered any such permanent injury," does not permit the jury to award compensation for future pain and permanent injury, unless the same is reasonably certain to follow as a result of the injury.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Patrick O'Keefe against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle & Priest and E. T. Miller, for appellant. Thompson & Campbell, for respondent.

NORTONI, J.

The suit is for personal injuries received by the plaintiff, a United States mail carrier, while he lay in an unconscious condition upon the defendant's street car tracks. Plaintiff was not rendered unconscious by contact with the car, but was stricken with disease probably while in the act of walking on the street, instantly became unconscious, and fell across defendant's track, where he lay helpless, when he was run upon and seriously and permanently injured soon thereafter by defendant's car. The suit is predicated and prosecuted upon the theory that defendant failed to exercise ordinary care to discover his presence on the track and stop the car so as to avert the injury, when, by the exercise of due care on its part, it had ample time and means to do so. The jury awarded plaintiff $3,500 damages, and defendant appeals.

The material facts are as follows: Plaintiff was walking on Kings Highway at the point where it crosses St. Louis avenue, en route to the post office substation in order to commence his day's labor as a letter carrier. St. Louis avenue runs east and west, Kings Highway, north and south. Both streets are public thoroughfares of the city of St. Louis. At the point where Kings Highway crosses St. Louis avenue, the defendant maintains a double track street railway. The track on the north is occupied by its west-bound cars, and the track on the south by its east-bound cars. As plaintiff approached the track, he stopped while one street car passed immediately in front of him, and, looking down the track toward the center of the city, although it was not yet sunrise, he saw the defendant's car approaching some 700 or 800 feet distant. Seeing there was no immediate danger therefrom, he journeyed forward, and was, without warning, suddenly stricken as he stepped upon the north track by some malady not disclosed, reeled and fell across said track in a wholly unconscious condition, and while in this condition and situation was run upon and injured by the car he had seen approaching from the east some 700 or 800 feet away. When the car came in contact with his body it was running at a rapid rate of speed. The fender attached to the foremost end of the car dragged and rolled plaintiff along the track for a distance of about 66 feet before the car stopped. Painful, severe, and permanent injuries were thereby inflicted upon him. He received 14 cuts on his head, many of which were about his face and caused his eyes to close from the swelling. Numerous bruises and marks were inflicted upon his body, and one of his great toes, as well as one of his small toes, was fractured. His physician says: "The articular surface of the bone of the great toe, both before and back of the joint, united in healing until the bone is as one solid bone," so that at the time of the trial, it was "just one bone without any joint," and would so continue permanently, of course, from which he would suffer more or less pain for many years, especially during changes of the weather. It was also shown that he had some internal injuries which caused him to spit blood more or less for several days. Defendant's counsel, in making the opening statement of the defense in the trial court, said as follows: Mr. Miller: "I think the evidence for the defendant will show that this accident occurred at 6:25 on the 11th of February, and the sun didn't rise until 6:58, nearly half an hour after the accident. There had been snow on the ground, and the track was `slippery.' We will explain what is meant by that more fully by the evidence. The effect of it is that, when the wheels of the cars are locked, they slide on the track; and you will readily appreciate the effect of that. This was nearly half an hour before daylight, and this car was coming down that track, and had a little headlight on it—on the front end of it—and that wasn't a light for throwing the light a distance ahead of the car on the track, but was one of those lights by which a party can see a car approaching; that was the purpose of it. This motorman couldn't see the plaintiff lying on the track. There will be no question about him lying on the track, and I suppose there is no question about him falling there unconscious. The motorman, we claim, couldn't see him within a sufficient distance to stop his car. The plaintiff was dressed in the regular uniform of mail carriers, and you know how near that would be the color of the earth, and the morning was foggy. And the policeman ran out there and tried to stop the car, and the motorman saw the policeman and began to stop. His first thought was that the policeman wanted the car to stop so he could get on or for some purpose, and he then began trying to stop the car and he couldn't, and the car picked plaintiff up on the fender, and ran on for quite a distance. On our theory, it is just a question of the motorman not being able, after he saw this man, to stop the car in time. Fortunately the fender worked, and the plaintiff was picked up and he was taken away. I believe the evidence will further show that there was quite a pool of blood at the place the plaintiff had originally fallen, which may in some way account for him falling there—blood that was not the result of the wound inflicted by the car. Those are the facts in connection with this unfortunate accident. It seems to be a pure accident to me, and from the testimony those are the facts I expect to be developed by the witnesses here, and if they are such I will expect a verdict at your hands."

The evidence on behalf of the plaintiff tended to show the facts above stated, and, further, the plaintiff was clothed in his mail carrier's uniform of light gray, quite the color of the earth in the center of the track at that point. The injury was received on the 11th day of February, 1905, after daylight and before sunrise, about 6:30 o'clock in the morning. It was sufficiently light to enable a policeman whose attention was directed in that direction by the sounding of a gong upon looking to see the plaintiff's form upon the track. His first impression was that it was a mail bag, inasmuch as he noticed a government mail wagon near and was expecting the mail car which, it seems, passed on defendant's road at about that hour. The officer, after his first impression, recognized the form on the track as that of a man, however, and ran forward toward the approaching car, waving his arms and shouting to the motorman, "Stop! stop!" etc.; that the car was, when he first recognized the form as that of a man, 150 feet east of plaintiff's prostrate form, and approaching at the rate of about 15 or 16 miles an hour; that it did not stop, but continued to approach and ran into the plaintiff, carrying or dragging him with its fender about 66 feet across to the west side of Kings Highway, where it came to a stop. He and others removed plaintiff in an injured and unconscious condition, conveyed him to, and placed him in the care of, a physician. Another witness who resided in the neighborhood said it had snowed a day or two before and there was still some snow around there; that the tracks were frosty, bright, and more or less slick as they are on cold mornings; that the track on which the car was running was on a slight incline, but level at the point of collision, and on the question...