Leach v. St. Louis & San Francisco Railroad Company

• Decision Date: 06 April 1909
• Citation: 118 S.W. 510,137 Mo.App. 300
• Parties: LEACH, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

118 S.W. 510

137 Mo.App. 300

LEACH, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 6, 1909

March 29, 1909, Submitted

Appeal from Stoddard Circuit Court.--Hon. J. L. Fort, Judge.

REVERSED AND REMANDED.

STATEMENT.--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 fifteen thousand dollars 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 occasioned 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 do anything.

"Q. I will ask you, if before you received this shock, you was able to do your work, and a healthy woman for your age? A. Yes, sir; I was able to do my work and make my own living for myself and daughter, and I was sound in body and mind and in good health.

"Q. Now, I will ask if this injury has totally incapacitated you from making your living? A. Yes, sir.

"Q. What had you been doing prior to this time? A. Sometimes, for several years, I have been keeping a rooming house, renting rooms."

This is all the evidence touching the matter of earnings claimed by counsel for plaintiff to be in the case.

Reversed and remanded.

W. F Evans and James Orchard for appellant.

Negligence is an affirmative fact to be established by proof before there can be any recovery of damage on account thereof, and it is a question of law whether or not the evidence tends to prove such negligence in any case. Ryan v. McCully, 123 Mo. 646; Chandler v. Gas Co., 174 Mo. 328; Stepp v. Railway, 85 Mo. 229; Rutledge v Railway, 123 Mo. 121; Warner v. Railroad, 178 Mo. 125. The court erred in giving instruction 2 on the part of plaintiff, in that it instructs the jury that in arriving at their verdict they may take into consideration any loss of earnings during the remainder of her life. This is error, for the reason that there is no testimony on which to base that instruction; in other words, there is no evidence as to what the plaintiff's earning capacity was. There was no evidence that she was in any business or in any calling that she would derive any income from whatever. In the case of Wallack v. Transit Co., 123 Mo.App. 167, the court says: "Plaintiff's instruction on the measure of damages is erroneous in authorizing the jury to assess damages for loss of time and earnings, caused by the injury, for the reason there is no evidence of the value of plaintiff's earnings." This being a mixed or freight train, the plaintiff as a passenger on said train assumed the dangers or perils which are necessarily incident to that mode of conveyance. McGee v. Railway, 92 Mo. 208; Whitehead v. Railway, 99 Mo. 263; Tuley v. Railway, 41 Mo.App. 432; Fullerton v. Railway, 84 Mo.App. 498; Wait v. Railroad, 165 Mo. 612.

K. C. Spence for respondent.

OPINION

REYNOLDS, P. J. (after stating the facts).

We regret that we are compelled to reverse this case on this point but it is too...