Kirby v. St. Louis & S. F. R. Co.

• Decision Date: 07 July 1910
• Citation: 146 Mo. App. 304,130 S.W. 69
• Parties: KIRBY v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

130 S.W. 69

146 Mo. App. 304

KIRBY v. ST. LOUIS & S. F. R. CO.

Springfield Court of Appeals. Missouri.

July 7, 1910.

1. CARRIERS (§ 314)—INJURIES TO PASSENGERS —PETITION—CONSTRUCTION.

Plaintiff alleged that she was a passenger on defendant's train, and that after it stopped at her station, while she was attempting to alight in the exercise of ordinary care, and before she had fully left the train and had a reasonable time to alight safely therefrom, defendant, before the train had stopped a sufficient length of time to enable plaintiff using due diligence to alight, caused the train to be started forward with a violent and sudden jerk without knowledge or warning to plaintiff, causing her to be thrown to the gravel and cinder platform at the station, and by reason of the sudden and violent jerking and forward movement of the train plaintiff was struck on the head and body by the moving car and injured. Held, that defendant's failure to hold the train a sufficient length of time to permit plaintiff to alight therefrom was the gravamen of the charge, and that the allegation that the train was moved forward with a sudden jerk, etc., was surplusage.

2. CARRIERS (§ 303)—INJURIES TO PASSENGERS —PREMATURE START — KNOWLEDGE OF EMPLOYÉS.

A carrier is bound to hold the train a sufficient length of time to give a passenger a reasonable opportunity to alight, and the knowledge of the carrier's servants that plaintiff was alighting at the time the train started is immaterial.

3. DAMAGES (§ 216)—PERSONAL INJURIES— INSTRUCTIONS.

In an action for injuries to a married woman, an instruction that in estimating plaintiff's damages the jury would consider not only the physical injury inflicted, the bodily pain and mental anguish endured, but might allow for such damages as appear from the evidence would reasonably result in the future, was not objectionable as authorizing recovery for loss of ability to perform her household duties and services.

4. DAMAGES (§ 173) — EVIDENCE — LOSS OF EARNING CAPACITY.

In an action for injuries to a married woman, evidence that prior to her injury she kept a boarding house and was able to perform household work was admissible to show her condition before the injury and the extent and permanency thereof, though she was not entitled to recover for loss of ability to perform services.

5. TRIAL (§ 255)—INSTRUCTIONS—REQUESTS.

It is not error to omit to give an instruction limiting the purpose of evidence, in the absence of a request therefor.

6. CARRIERS (§ 321)—INJURIES TO PASSENGERS—PREMATURE START—INSTRUCTIONS.

In an action for injuries to a passenger by an alleged premature start, a requested charge that if the train started while plaintiff was on the steps of the car in the act of alighting, and that in starting it moved slowly and not with a sudden and unusual jerk, and she was caused to fall by reason of the slow starting of the train only, she could not recover, was properly refused, as it was defendant's duty to hold the train a reasonable time to permit plaintiff to alight before it started.

7. DAMAGES (§ 132)—INJURIES TO PASSENGER —EXCESSIVENESS.

Plaintiff, a married woman, 43 years of age, was injured by the premature starting of a train as she was alighting. She sustained injury to her back, knee, and ankle, and her fall caused displacement and falling of the womb. At the time of the trial, nine months after the injury, the ankle had not fully recovered. She was still somewhat lame on it, and if she stepped on anything that would cause it to careen it would cause pain and some swelling. She was confined to the bed for two months after the injury, and some time after the injury there was a discharge from the womb of blood and pus. She was operated on several times for this difficulty, and there was at the time of the trial still some inflammation of the womb, though it had improved very much since the injury. It was still misplaced, and she was required to wear a support to hold it in place. She was nervous and still had pains in the back of her head and small of her back, but did not testify as to the permanency of her injuries, nor did she produce any physician to testify with reference thereto. Held, that the evidence was insufficient to warrant the jury in finding that plaintiff's womb and nervous system were permanently injured, and that a verdict for $7,500 was excessive, and should be reduced to $4,000.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Mary E. Kirby against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition.

W. F. Evans, Moses Whybark, and A. P. Stewart, for appellant. H. E. Doerner, McKay & Corbett, and Ward & Collins, for respondent.

COX, J.

This is an action for personal injuries alleged to have been received by plaintiff while alighting from defendant's passenger train at Steele, Mo. Trial by jury, verdict for plaintiff for $7,500, and defendant has appealed.

The evidence shows the home of plaintiff to be at Forest City, Ark.; that she purchased a ticket and became a passenger over defendant's road at Memphis, Tenn., bound for Steele, Mo., on November 4, 1905; that when the train arrived at Steele, Mo., plaintiff was sitting near the rear end of the coach, and her testimony tends to show that when the station was announced and the train stopped she immediately arose and proceeded with ordinary care to the front end of the car that she might alight therefrom; that when she reached the door the passengers boarding the train at Steele were then coming in and interfered to some extent with her getting off the train; that when she got out on the platform and started to descend the steps the train started suddenly and threw her against the car and off onto the platform and injured her; that at the time the train started she did not see either the conductor or the brakeman, and the testimony of other witnesses introduced in her behalf tended to show that neither the conductor nor brakeman were there at the time she attempted to alight and fell or was thrown off; that the train only stopped a very short time. The testimony on the part of the defendant tended to show that the train stopped its usual time at this station, and that when the signal was given for the train to start there was nothing to indicate but that all the passengers wishing to alight at that station had alighted.

The errors assigned relate chiefly to the instructions of the court. The first contention of the defendant is that a demurrer to the testimony should have been sustained for the reason that the testimony of the plaintiff fails to support the allegations of the petition and insists that because plaintiff alleged in her petition that the train "started forward with a violent and sudden jerk, lurch, and bound, and forward movement, without the knowledge of or any warning whatever to the plaintiff," that the plaintiff must prove these facts, and, in addition thereto, that the sudden starting resulted from some negligence of the defendant before she can recover. Defendant insists that the allegation above quoted was the gravamen of the negligence charged against the defendant, and hence must be proven before plaintiff could recover; while respondent insists that the gravamen of the charge of negligence was the failure of defendant to hold the train a sufficient length of time before starting to give plaintiff a reasonable opportunity to alight from the train. Upon this contention hangs the result in this case.

The portion of the petition charging the negligence of defendant is as follows: "That this plaintiff, together with other passengers bound for said station of Steele, Mo., were thereupon requested by defendant, through its agents and employés in charge of said train, to alight therefrom; and that the defendant, while said train was so stopped at said place, as aforesaid, and while the plaintiff, in the exercise of ordinary care, and with no fault on her part, was attempting to and...