Laycock v. United Railways Company of St. Louis

• Decision Date: 30 November 1921
• Citation: 235 S.W. 91,290 Mo. 344
• Parties: JOSEPHUS A. LAYCOCK v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Court: Missouri Supreme Court

235 S.W. 91

290 Mo. 344

JOSEPHUS A. LAYCOCK v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Supreme Court of Missouri

November 30, 1921

Appeal from St. Louis City Circuit Court. -- Hon. William T. Jones Judge.

Affirmed.

Albert D. Nortoni, Charles W. Bates, T. E. Francis, and Thomas Bond for appellant.

(1) The petition fails to state a cause of action, in that it contains no averment that the jerk which is alleged to have caused the accident, was unusual to the ordinary operation of the street car. Bartley v. Street Ry., 148 Mo. 124 139; Saxton v. Railroad, 98 Mo.App. 494, 503; Bobbitt v. Street Ry., 169 Mo.App. 424. (2) Instruction 1 is erroneous in that it permits a verdict for the plaintiff without requiring the jury to find from the evidence that the jerk which is alleged to have caused the accident, was unusual to the ordinary movements of the car. Cases cited above. (3) Instruction 3 is erroneous in that it fails to limit the damages which the jury are authorized to award for loss of time and impaired earning capacity, past and future, to the amount claimed in the petition. Finley v. United Rys. Co., 238 Mo. 6, 14; Radtke v. Basket & Box Co., 229 Mo. 1, 21; Tinkle v. Railroad, 212 Mo. 445, 471; Smoot v. Railroad, 194 Mo. 513 521. (4) Instruction 3 is also erroneous because it permits a double recovery for a single loss, in that it permits the jury to compensate the plaintiff for loss of time and also impaired earning capacity in the past, when the one necessarily includes the other. Fargy v. Rutledge, 180 S.W. 90; Western & Atlantic Railroad v. Smith, 88 S.E. 983; St. Louis Southwestern Ry. Co. v. Smith, 63 S.W. 1064. (5) The court erred in not sustaining defendant's objections to the testimony offered to show loss of profits, for the reason that said profits were speculative, and the testimony as to the amount thereof was uncertain, and the court erred in directing the jury in instruction 3 that they might compensate plaintiff for loss of time and earnings, for the reason that there was no competent evidence showing any such loss. Morrow v. Railroad, 140 Mo.App. 200, 213; Reynolds v. Tel. Co., 81 Mo.App. 223, 231; Viernow v. Carthage, 139 Mo.App. 276, 281; Cravens v. Hunter, 87 Mo.App. 456, 465; Burdall v. Johnson, 122 Mo.App. 119; Wilt v. Hammond, 179 Mo.App. 406, 418. (6) The court erred in sustaining plaintiff's objection to the testimony of witness Maag to the effect that the motion of the car was not sufficient to throw a man, or to overbalance a man. Such statements of eye-witnesses who observed the motion of the car and its effect on passengers thereon, are statements of fact, and are not incompetent under the opinion rule. 17 Cyc. 81 to 98; Denver, T. & Ft. W. Ry. Co. v. Ditch Co., 35 P. 910. (7) We respectfully invite the court's attention to the facts and rulings in the following cases, which we cite in support of our contention on the main question in this case, that is, that the petition was insufficient, our demurrer to the evidence should have been sustained and also plaintiff's first instruction was wholly insufficient, misleading and misdirection. Hite v. Met. St. Ry. Co., 138 Mo. 132; Bartley v. Met. St. Ry. Co., 148 Mo. 124; Hedrick v. Mo. Pac. Ry. Co., 195 Mo. 104; Tickell v. St. Louis & Iron Mt. Ry. Co., 149 Mo.App. 648; Guffey v. Hannibal & St. Joe Ry. Co., 53 Mo.App. 462.

Sale & Frey and Fauntleroy, Cullen & Hay for respondent; Ralph T. Finley of counsel.

(1) The petition does not limit plaintiff's damages for loss of earnings. The recital that "prior to his injury he earned an average of five dollars per day" is merely a statement of what plaintiff had previously earned and is not alleged to be plaintiff's damages for either past or future loss of earnings. Barnes v. Houchin, 195 S.W. (Mo. App.) 61; Bible v. Railroad, 169 Mo.App. 525. (2) Even though it be held that plaintiff's petition limited the amount of his past earnings, the instruction on the measure of damages is, nevertheless, not erroneous, since all the evidence in the case showed that his earnings were less than the amount claimed in the petition. Shinn v. United Rys. Co., 248 Mo. 173; Campbell v. Chillicothe, 175 Mo.App. 436, 439; Summers v. Railroad, 187 S.W. 125, 127; Bell v. United Rys. Co., 183 Mo.App. 334; Morris v. K. C. Rys. Co., 223 S.W. 784; Hance v. United Rys. Co., 223 S.W. 123; Erdmann v. United Rys., 174 Mo.App. 245; Lindsay v. Kansas City, 195 Mo. 180; Sang v. St. Louis, 262 Mo. 454; State ex rel. v. Reynolds, 257 Mo. 19; Carter v. Wabash, 182 S.W. 1061. The defendant did not ask a more definite or specific instruction as to the measure of damages. It thereby waived all right to claim plaintiff's instruction on the measure of damages erroneous for indefiniteness. King v. St. Louis, 250 Mo. 514; Powell v. Railroad, 164 S.W. 638; Browning v. Railroad, 124 Mo. 55; Waddell v. Railroad, 213 Mo. 20. (3) Plaintiff's instruction on the measure of damages did not permit a double recovery. Reynolds v. St. Louis Transit Co., 189 Mo. 408. A recovery for loss of time and impairment of earning capacity is not double. 17 C. J. 781.

SMALL, C. Ragland, C., concurs; Brown, C., absent. Graves and Elder, JJ., dissent.

OPINION

In Banc.

SMALL C.

-- This case, a suit for personal injuries claimed to have been received by plaintiff as a passenger from a sudden jerk of defendant's car, was tried in the Circuit Court of the City of St. Louis. Judgment was rendered for plaintiff, and defendant appealed to the St. Louis Court of Appeals, which certified the case to this court for final determination, because said Court of Appeals deemed its decision herein contrary to the decision of the Kansas City Court of Appeals in Campbell v. Chillicothe, 175 Mo.App. 436, 162 S.W. 309, on the instruction on the measure of damages given for the plaintiff.

I. First: As to whether the petition fails to state a cause of action, and does not allege, in substance, that the plaintiff was injured by an unusual or extraordinary movement or jerk of the car.

It is true, as contended by appellant, that in this case the plaintiff, being safely upon the car as a passenger and not claiming to have been injured while he was getting on or leaving the car, but while he was riding thereon, in order to have a cause of action against defendant must allege and prove that the jerk of the car complained of was an unusual or extraordinary jerk, because all cars are subject, in their operation, to more or less irregularity in movement, without any negligence on the part of the defendant or its employees in charge of such cars.

The petition, alleges as follows: "Plaintiff says that the Manchester car, upon which he was received as a passenger by the defendant company, was crowded with passengers at the time he got on the car at Jefferson and Chouteau avenues; that all the seats were occupied by passengers, and the aisle in said car was crowded with passengers, and the rear platform of said car was also crowded. Plaintiff paid his fare as a passenger to the conductor of said car by delivering to him the transfer ticket, and was standing on the rear platform of said car while the car proceeded on its way along the usual route of said car, and between Vandeventer Avenue and Kingshighway, when the defendant's servants in charge of said car negligently and carelessly permitted and allowed the same to move with a sudden and unexpected jerk, thereby pulling or driving the car forward with such force as to throw someone in the inside of the car against the glass entrance door breaking the glass therein, and causing the same to strike plaintiff in the eyes and in his face, greatly injuring him."

We think these allegations are sufficient, after verdict, to state a cause of action. To move a crowded electric street-car with a sudden and unexpected jerk with such force as to throw some one inside of the car against the glass entrance-door, breaking the glass therein and causing the same to strike plaintiff in the eyes and in his face, greatly injuring him, is, in substance and effect, to allege facts showing an extraordinary and unusual movement of such a car. The cases cited by learned counsel for appellant, of jerks, of no greater force than that alleged in the petition, on cable cars or freight trains, do not apply to this case, because there is a wide difference between the jerks and lurches of cable cars and freight trains necessarily incident to their operation and the jerks and lurches incident to the operation of an electric street car. The case cited of a cable car, to-wit, Hite v. Met. St. Ry. Co., 130 Mo. 132, shows that it was impossible to operate the cable car around the 12th Street Loop in Kansas City without making irregular and violent jerks sufficient to throw a person from the car, owing to the impossibility of regulating the slack in the cable and other mechanical devices under the circumstances therein shown. Obviously, the cases of injuries to passengers on a freight train by lurches in its movement, as in Hedrick v. Railroad, 195 Mo. 104, can have no relevancy to this case. Such violent jerks, as described in the petition in this case, might be usual and ordinary in the operation of a cable car or a freight train, but, in our judgment, not ordinary or usual, but extraordinary or unusual, in the operation of a crowded electric street car. Electric street cars are obviously much more regular, stable and uniform in their movements, than cable cars or freight trains.

We rule, that the petition stated a cause of action.

II. Did plaintiff's main instruction require the jury to find that the jerk was unusual or extraordinary? Said instruction required the jury to find "that [while] said car was proceeding on its way along the usual route of said car...