Klutts v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 30 April 1882
• Citation: 75 Mo. 642
• Parties: KLUTTS v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

75 Mo. 642

KLUTTS

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Mississippi Circuit Court.--HON. D. L. HAWKINS, Judge.

AFFIRMED.

Bennett Pike for appellant.

Robt. Waide and J. B. Dennis for respondent.

HENRY, J.

This is a suit to recover damages for alleged personal injuries sustained by plaintiff in consequence of a train of defendant's cars, on which plaintiff was a passenger, being precipitated over an embankment of said road. The controversy is in relation to the extent of plaintiff's injury, and his alleged contributory negligence after he was injured, whereby it was aggravated, the defendant insisting and having introduced evidence tending to prove that plaintiff had imprudently exposed himself, and failed to procure proper medical attention after he received the injury; defendant also claiming that the cars were thrown from the track in consequence of a hidden defect in the iron rail, which no examination would have disclosed. There was a judgment for plaintiff for $3,500, from which defendant has appealed.

For plaintiff the court instructed the jury as follows:

1. If the jury believe from the evidence that defendant, through negligence or carelessness, (and without negligence on the part of plaintiff,) inflicted upon plaintiff, any of the injuries mentioned in the petition, they will find for plaintiff, and assess his damages at such sum as they may think him entitled to, not to exceed the sum of $10,000.

2. Negligence in its primary sense is the want of care, caution, diligence, skill or discretion in the performance of an act or duty, by one having no intention to injure the person complaining thereof, and includes every omission to perform a duty imposed by law, for the avoidance of injury to persons or property. Railroad companies are bound to maintain a good, safe track and road-bed at all times; and proof of a break in the track by which the cars were thrown off is sufficient evidence of negligence to put the company upon the defense in an action by a passenger for injuries sustained.

3. If the jury find for plaintiff, they will allow, first, the expenses incurred by plaintiff in attempting to cure himself of his injuries. Second, His loss of time occasioned by this. Third, His bodily pain and suffering, and mental anguish. Fourth, The present and prospective condition of the wounded limbs and spine resulting from the injury; and to this sum they may add the future effect of the injuries upon his health, the use of his limbs and spine, his ability to labor, and attend to his affairs, and generally to pursue the course of life and business he might otherwise have done, and which are the direct, legal and necessary results of the injuries.

4. If the jury believe from the evidence that after the accident, by which plaintiff was injured, had occurred, defendant employed a surgeon, or sent one of their surgeons employed to visit the wounded and attend them, that in waiting upon plaintiff, he made a mere cursory examination or none at all, and dressed his injuries in an unskillful manner, then injuries resulting from this fact cannot be imputed to the plaintiff for negligence.

5. If plaintiff exercised such care and attention in regard to his injuries, as a careful and prudent man should have done, under the particular condition and circumstances of the plaintiff, after the injuries were received, he is not debarred from recovering from the defendant all the damages which resulted from his injuries, although a part of it may have been caused by the unskillfulness of the surgeon who treated him.

6. Although the jury may believe from the evidence that plaintiff did not employ a skillful surgeon to attend him, after he discovered the nature of his injuries, still if they believe that plaintiff exercised such care and attention in regard to his case as a prudent man would under his particular circumstances and situation have done, then plaintiff is not guilty of contributory negligence.

For the defendant the court instructed as follows:

1. Railway companies do not warrant the safety of passengers.

2. And if the jury believe from the evidence that the track, ties, embankment and rails upon which defendant operated its train of cars at the time of the accident, were reasonably safe for the purpose for which they were erected and constructed, and without any fault, omission or neglect of defendant, the car in which plaintiff was a passenger, was thrown from the track, plaintiff cannot recover for an injury occasioned by said accident.

3. If the jury believe from the evidence that plaintiff was injured, as alleged, on defendant's railway, and that after receiving such injuries, he was advised by a surgeon who examined his fractures and wounds to have his wrist set, and his collar-bone set, and that he for any cause refused to have this done, and permitted the said fractured members to remain unset, and unreduced, and by reason of such refusal, the said fracture and wounds have been aggravated and been rendered permanent, then for such injuries so aggravated and rendered permanent, plaintiff cannot recover damages.

4. If the jury believe from the evidence that plaintiff was injured by the accident on defendant's railroad, and had the head of his left ulna fractured, and his collar-bone broken, a portion of the tibia of his left leg fractured, and his back hurt, and that after receiving these injuries, he walked along the embankment of defendant's railway, and mounted into...