Kleinlein v. Foskin

• Decision Date: 01 February 1929
• Docket Number: No. 27135.,27135.
• Citation: 13 S.W.2d 648
• Parties: LEONARD KLEINLEIN v. STEPHEN R. FOSKIN, Appellant.
• Court: Missouri Supreme Court

13 S.W.2d 648

LEONARD KLEINLEIN v. STEPHEN R. FOSKIN, Appellant.

No. 27135.

Supreme Court of Missouri, Division No. 1.

February 1, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.

AFFIRMED (upon condition).

Brackman, Hausner & Versen for appellant.

(1) There was no issue of contributory negligence. It is always error to instruct on or refer to a matter not in issue. Peoples Bank v. Baker, 193 S.W. 632; Hatfield v. Smith, 174 Mo. App. 705. (a) Instruction 2 unfairly comments upon and emphasizes defendant's failure to plead contributory negligence, is argumentative and misleading. Any instruction which comments on and emphasizes any feature of the prosecution or defense is clearly erroneous. Andrew v. Limebaugh, 260 Mo. 663; Sexton v. Lockwood, 207 S.W. 856; State v. Hendricks, 172 Mo. 654; Derrington v. Poplar Bluff, 186 S.W. 561. (b) The instruction refers to the defendant as "it," declaring that no plea of contributory negligence was in "its" answer. This unduly emphasizes the fact that there was an insurance company defending the case, which was prejudicial to the defendant and constituted reversible error. Pilkerton v. Miller, 283 S.W. 456. (c) The instruction entirely excludes from the consideration of the jury any negligence of the plaintiff, even though such negligence may have been the sole cause of his injuries. In every case the question of plaintiff's negligence being the sole cause of the injury should be considered by the jury. As framed, the instruction is misleading and, therefore, clearly erroneous. Derrington v. Poplar Bluff, 186 S.W. 561; Boessel v. Wells-Fargo Co., 260 Mo. 463. (2) Instruction 3, on the measure of damages, was erroneous, because it failed to limit recovery to the amount claimed in the petition. The giving of this instruction, therefore, is reversible error according to all the authorities. Finley v. United Railways Co., 238 Mo. 6; Radtke v. Basket & Box Co., 229 Mo. 18; Smoot v. Kansas City, 194 Mo. 513; Neinz v. Railroad, 143 Mo. App. 38. It was also erroneous because it allowed a verdict for speculative damages (loss of the earnings in plaintiff's business, when there was no evidence from which to determine such loss). An instruction on the measure of damages must limit the recovery to the amount definitely shown in the evidence. (3) The verdict of the jury was excessive, and so much so that it reveals passion and prejudice on the part of the jury. By comparison with other cases, the injuries in this case do not sustain the amount of the verdict. Nicholas v. Plate Glass Co., 126 Mo. 55; Burdict v. Railroad, 123 Mo. 236; Harris v. Street Ry., 168 Mo. App. 340; Aaron v. Railway Co., 159 Mo. App. 307; Dominick v. Coal Co., 255 Mo. 466; Applegate v. Railroad, 252 Mo. 201; Welborn v. St. Ry. Co., 170 Mo. App. 354; Hewell v. Bolt & Nut Co., 245 Mo. 726; Dent v. Traction Co., 145 Mo. App. 72; Zeiler v. Railroad, 153 Mo. App. 620; Johnson v. Brick & Coal Co., 205 S.W. 543; Patashnick v. Wells, 273 S.W. 777; Powell v. Ry. Co., 226 S.W. 916; Hollard v. Mo. Pac. Railroad Co., 257 S.W. 202.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) Instruction 2 is not subject to either of the five objections made to it by appellant. (a) It was the court's duty to tell the jury what the issues were and confine them to the issues. Butcher v. Death, 15 Mo. 275; Sinnamon v. Moore, 161 Mo. App. 176; White v. Railroad, 250 Mo. 482. (b) There was no comment in the instruction. It is neither argumentative nor misleading. (c) The typographical error in using the word "its" instead of "his" was not prejudicial. (d) The instruction excluded nothing the jury had a right to consider. It limited the jury to the issues made on the record. Rettlia v. Solomon, 308 Mo. 673; State ex rel. Goessling v. Daues, 314 Mo. 288. (e) Instructions must be read in the light of the facts in evidence. The instructions should keep the jury within the evidence. Donohue v. Glasgow, 1 Mo. 505; Turnbow v. Dun ham, 272 Mo. 65; Beard v. Railroad, 272 Mo. 156; Morley v. Prendiville, 295 S.W. 567; Head v. Lumber Co., 281 S.W. 444. (f) Instructions should be considered as a whole. Fugate v. Miller, 109 Mo. 290. (2) Instruction 3 is not open to any of the objections appellant makes. (a) There was no error in omitting an express limitation upon recovery for impairment of respondent's ability to engage in his business as a florist. Laycock v. Rys. Co., 290 Mo. 353; Leighton v. Davis, 260 S.W. 989; Lindsay v. City, 195 Mo. 179; Gates v. Rys. Co., 251 S.W. 66; Jablonowski v. Mfg. Co., 312 Mo. 194. (b) The evidence justified a recovery for impairment of respondent's ability to work and labor at his business. Steinkamp v. Chamberlain Co., 294 S.W. 762; Perrigo v. St. Louis, 185 Mo. 289. Substantial damages were inferable from the character of the injuries. In any event the evidence entitled respondent to nominal damages, and if appellant desired a limiting instruction it was his duty to ask it. State ex rel. v. Reynolds, 257 Mo. 37; State ex rel. v. Allen, 307 Mo. 486; Hoover v. Railroad, 227 S.W. 79; Laycock v. Rys. Co., 290 Mo. 356; Powell v. Railroad, 255 Mo. 454; Sang v. St. Louis, 262 Mo. 462; Kibble v. Railroad, 285 Mo. 617; Bagnell Timber Co. v. Railroad, 250 Mo. 514; Buehler v. Paint Co., 231 S.W. 286. (3) Even if all the contentions appellant makes as to Instruction 3 could be upheld no reversal of the judgment would be justified. Laycock v. Rys. Co., 290 Mo. 355; Hance v. Rys., 223 S.W. 123.

SEDDON, C.

Action to recover damages for personal injuries alleged to have been suffered by plaintiff (respondent) and to have been caused by the negligent operation of an automobile, claimed to have been owned and driven by the defendant (appellant) at the time of plaintiff's alleged injury. The cause was tried and submitted to a jury, resulting in a finding and verdict for plaintiff in the sum of $9,375, and judgment was entered in accordance with the verdict. After an unsuccessful motion for a new trial, defendant was allowed an appeal to this court from the judgment nisi.

The petition charged defendant with five acts of primary negligence, and also with negligence under the humanitarian rule. The answer was a general denial. Plaintiff submitted his case upon two of the specifications of primary negligence, namely, the driving and operation of the automobile by defendant at a rate of speed which was high, unsafe and dangerous under the circumstances and conditions in evidence, and so as to endanger the life or limb of plaintiff, and failure to give the plaintiff any warning of the approach of the automobile; plaintiff also submitted his case upon the humanitarian rule or doctrine of negligence.

The evidence tends to show that plaintiff was injured about four or 4:30 o'clock on the afternoon of March 30, 1924, at or near the intersection of Easton and Newstead Avenues, both being public streets in the city of St. Louis. Easton Avenue is an east-and-west street, while Newstead Avenue extends north and south. There is a jog in Newstead Avenue at its intersection with Easton Avenue; that is to say, Newstead Avenue runs southwardly from the south line of Easton Avenue, and, about 150 feet west of its intersection with the south line of Easton Avenue, Newstead Avenue continues northwardly from the north line of Easton Avenue. There is a double track street car line on Easton Avenue, the eastbound cars using the south track and the westbound cars using the north track. The customary stopping place for east bound street cars is at the southwest corner of the intersection of Easton Avenue and that part of Newstead Avenue which extends south from the south line of Easton Avenue.

Plaintiff testified that he had been attending a meeting held for some purpose in a building located on the north side of Easton Avenue and a short distance east of the intersection with Newstead Avenue; that, upon leaving said building, he walked west on the north sidewalk of Easton Avenue, intending to take an eastbound street car at the customary stopping place at the southwest corner of the intersection of Easton and Newstead Avenues; that, when he reached a point on the north sidewalk of Easton Avenue about opposite the customary street-car stopping place, he saw an eastbound street car approaching from the west and coming to a stop at the customary stopping place, and that he signaled to the motorman of the street car that he desired to take passage thereon; that he stood upon the north curb of Easton Avenue and "looked up and down Easton Avenue, east and west, and no automobile was coming either way;" that he then stepped from the curb into the roadway of Easton Avenue, and had taken three or four steps to the south, when he was struck by an automobile; that the left side of the automobile struck him on the leg and knocked him down; and that he did not see or hear any automobile approaching him until he was struck.

The motorman of the street car testified on behalf of plaintiff, as follows: "I was going east. I made my stop at Easton Avenue and Newstead, a regular stop. There was a large car (automobile), a large, expensive car coming north on Newstead, and that car stopped to let me by; and there was another car, a Ford car, I think it was, a touring car, it came north on the east side of that Packard or expensive car, and he went around and, when he came to the north curb of Easton Avenue, he hit Mr. Kleinlein (plaintiff) as he stepped off the sidewalk. He (plaintiff) made a couple of steps and then it hit him. That machine kept on going about fifty or sixty feet west, and stopped. The man got out (of the automobile) and walked down to the man that was hurt; that man that drove the machine got out of the machine and walked to Mr. Kleinlein (plaintiff). I moved on when he walked down to the man that was hurt. This automobile, on this occasion, was going fifteen miles an hour as it made the turn. No signal of...