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

• Decision Date: 06 April 1909
• Citation: 137 Mo. App. 300,118 S.W. 510
• Parties: LEACH v. ST. LOUIS & S. F. R. CO.
• Court: Missouri Court of Appeals

118 S.W. 510

137 Mo. App. 300

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

St. Louis Court of Appeals. Missouri.

April 6, 1909.

1. APPEAL AND ERROR (§ 1066)—PREJUDICIAL ERROR—INSTRUCTIONS.

An instruction submitting a rule for estimating damages, including the element of loss of earnings, is reversible error, where there is no foundation for it in the evidence.

2. WORDS AND PHRASES—"MIXED TRAINS."

A freight train with a passenger coach attached is a "mixed train."

3. CARRIERS (§ 280)—PASSENGERS—MIXED TRAINS—DUTY OF CARRIER.

While passengers on a mixed train cannot expect all the conveniences and comforts furnished on regular passenger trains, the carrier is bound to exercise as high care for their safety as is compatible with the management of such trains.

4. TRIAL (§ 296) — INSTRUCTIONS — ERROR CURED.

In an action for injury to a railway passenger, any error in an instruction that if the company carelessly and negligently caused other cars to strike a coach, etc., in failing to define "carelessly" and "negligently," was cured by an instruction that a mere sudden jolt of the cars was not negligent, and that unless the trainmen were negligent in making the coupling, or the machinery, etc., was out of order, plaintiff could not recover.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by Mary E. Leach against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The plaintiff in this case brought her action for personal injuries received while a passenger on a freight train of the defendant, to which was attached a passenger coach, into which she was escorted by the conductor of the train, and against which coach, while on the track, other cars were backed with such violence, as it is claimed, as to throw her forward across the seat and injure her internally. Charging negligence in the operation of the train, she sues for $15,000 damages. At a trial before the court and jury she was awarded $1,000. Various errors are assigned to the giving and refusal of instructions, and it is insisted that there was no evidence whatever in the case to sustain the verdict. Among other instructions, given at the instance of the plaintiff, is this, in part, in instructing on the measure of damages, namely, that the jury should assess plaintiff's damages at such sum, not exceeding $15,000, as from the evidence they might believe to be a fair compensation for the injuries sustained by her on account of the collision; this instruction closing with these words: "And that in estimating such damages you should take into consideration the physical pain and mental anguish occassioned by her injuries, if the jury find that she was injured, the fact, if you so find from the evidence, that her injuries are permanent, and their future effect upon her health, if from the evidence you believe it will be affected thereby, and, further, any loss of earnings during the remainder of her life." This covers all contained in the instructions as to the rule for estimating the damage. It is objected to this instruction that it submits to the jury the question of loss of earnings by plaintiff during the remainder of her life, and that there was no evidence whatever showing what earnings she had theretofore been receiving, or would lose by reason of her injuries. The testimony on this point, as set out in the brief of plaintiff's counsel is this: "Q. I will ask you if you are able now, or have been since you got this injury, to do your work? A. No, sir; I have not been able to...