King v. City of St. Louis

• Decision Date: 31 May 1913
• Citation: 157 S.W. 498
• Parties: KING v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

157 S.W. 498

KING v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. APPEAL AND ERROR (§ 206) — EVIDENCE — OBJECTIONS.

Where an answer of a witness on direct examination, not responsive, was stricken out on motion and withdrawn by the attorney of the party, and the adverse party took no exception to any ruling, nor requested further ruling, nor made any complaint in the motion for new trial, the judgment would not be reversed because of the conduct of the witness.

2. DAMAGES (§ 216) — PERSONAL INJURIES — FUTURE PAIN — INSTRUCTIONS — "DIRECTLY."

An instruction in an action for personal injuries, which authorizes damages for pain which the jury believe from the evidence plaintiff has suffered or will suffer by reason of the injuries "and directly caused thereby," is not objectionable for failing to limit recovery for future pain to such as is reasonably certain to result from the injuries; the word "directly" in the quoted phrase indicating proximate cause to the exclusion of remote cause.

3. DAMAGES (§ 208) — PERSONAL INJURIES — LOSS OF EARNINGS — PETITION — EVIDENCE — QUESTION FOR JURY.

Where the evidence, admitted without objection in support of the petition in an action for personal injuries, alleging that plaintiff was permanently disabled from labor and avocation as the keeper of a rooming and boarding house and had lost and would lose the earnings of her labor and avocation, showed that plaintiff kept a rooming house, realizing about $75 a month net when her house was full, that after the injuries she could not carry on her business, that she kept the roomers that were in the house, but never tried to get any one else, that a third person, who was in the house, took care of her and of the house after the injuries, and that she was totally disabled for six weeks, went on crutches for nine months, and was lame for life, the question of damages for loss of earnings was properly submitted to the jury, for she was entitled to recover at least nominal damages on that ground.

4. DAMAGES (§ 9) — NOMINAL DAMAGES.

One whose legal right has been violated is entitled to recover at least nominal damages, though no actual damages are shown.

5. APPEAL AND ERROR (§ 1068) — HARMLESS ERROR — ERRONEOUS INSTRUCTIONS.

Where the jury, in an action for personal injuries sustained by a woman 50 years old, consisting of a broken leg, dislocated ankle, and permanent disability, awarded as damages $1,157.09, while $115 had been paid for medical services, the error, if any, in submitting the question of loss of earnings did not affect the result and must, as required by Rev. St. 1909, § 2082, be disregarded.

6. TRIAL (§ 256) — INSTRUCTIONS — REQUESTS — NECESSITY.

An instruction in an action for personal injuries, which authorizes damages for any loss of the earnings of plaintiff's labor which she has sustained, or will sustain, by reason of the injuries and directly caused thereby, is not erroneous as a general instruction, and defendant, desiring a limitation to nominal damages, must request an instruction or it cannot complain.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Alvira King against the City of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

William E. Baird and Truman P. Young, both of St. Louis, for appellant. A. R. & Howard Taylor, of St. Louis, for respondent.

LAMM, J.

Suing for $15,000 for personal injuries, plaintiff, a widow aged 50 years, had a verdict for $1,157.09, and defendant on due steps appeals from the judgment thereon.

It is alleged in the petition, denied in the answer (and proved at the trial), that on a brick sidewalk on one of defendant's public streets, to wit, Garrison avenue, on the 6th day of December, 1908, there was a hole, a sort of pitfall, of a size and depth to cause footmen to stumble or step therein and be hurt; that it existed for such length of time as to bring home notice to defendant; and that after nightfall on said date plaintiff walked on said sidewalk and, stepping into said hole, fell, thereby breaking her right leg, dislocating her right ankle (a lateral dislocation), and somewhat injuring her left hip and leg. It is also alleged in the petition, denied in the answer (and proved at the trial), that she was permanently disabled and, considering her age, will, it is likely, always be a cripple and suffer pain. It is alleged in the answer, but not shown at the trial, that her injuries were caused by her own negligence contributing thereto. It is undisputed that plaintiff paid out $15 for medicines and $100 for medical attendance. It is undisputed that she was made unconscious by her fall and consequent injuries; that she was carried to her house some distance away by those who found her in that plight and by those of her own household who received word and went for her; that therefrom she was confined to her bed for about six weeks and then used crutches for nine or ten months, and, from about an hour after her injury, for four or five months thereafter was regularly under a doctor's care, and from thence onward to the date of the trial had been under his treatment and in consultation with him at intervals on account of her yet visible injuries.

Defendant made no attempt to controvert the fact of plaintiff's fall or the extent of her pains and hurts, nor controvert her medical testimony showing that, for one of her age they were permanent, nor her lay testimony that by standing for any length of time about her household duties her ankle pains and swelling returned to her.

There was, however, a sharp dispute on the existence of any hole at all in the sidewalk; but there was testimony (and much of it) on her behalf that several bricks were out of the sidewalk and that their absence made a dangerous hole for several weeks before her injury. Moreover, it is not now contended by defendant that the state of the proof is such that an appellate court has any call to meddle with her verdict on that issue of fact. The case, then, may proceed on the theory that her injuries and defendant's negligence were submitted on substantial proofs and good instructions and found against defendant.

We are asked to reverse the judgment and remand the cause on the grounds following:

(1) Because of the introduction of certain testimony tending to show that other accidents had happened at the same hole.

(2) Because the withdrawal of the evidence on that score (which happened) did not heal the error.

(3) Because her instruction on the measure of damages was erroneous.

We will recur to pertinent parts of the petition, evidence, and rulings in connection with a discussion of those grounds for reversal. In our opinion there is no reversible error in the case. This because:

1. Of alleged error in admitting testimony (and herein of whether the withdrawal of the same cured such error). With a witness (Lynas) on the stand, on direct examination the following occurred, of which alone the foregoing assignment of error is predicated: "Q. Will you tell the jury the condition in which you saw the hole then? A. Well, I had been doing some work at the Morgan street address and was returning home to Olive street with a tool box on my shoulder. The box had some wrenches and pretty heavy tools in it, and naturally I would watch how I would carry the box more than the sidewalk, for fear of striking somebody with the box on my shoulder, and I stepped into this hole and tripped and fell flat, and spoke about the hole being in the sidewalk to my wife when I got home. (Objected to; objection sustained.) Mr. Baird: I ask to have the testimony stricken out as to his falling in the hole. The Court: What he told his wife will be stricken out. Mr. Baird: Well, I ask to have the other testimony stricken out to the effect that he had fallen in the hole three weeks prior to this time. Mr. Taylor: I withdraw that. The...