Loftus v. Metropolitan St. Ry. Co.

• Decision Date: 22 May 1909
• Citation: 119 S.W. 942,220 Mo. 470
• Parties: LOFTUS v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

119 S.W. 942

220 Mo. 470

LOFTUS v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri.

May 22, 1909.

1. CARRIERS (§ 321)—CARE AS TO PASSENGERS —STATEMENT AS TO DEGREE IN INSTRUCTIONS.

An instruction, declaring that the obligation of a carrier to a passenger was to use the highest practicable degree of care of very prudent, skillful, and experienced men engaged in that kind of business, is not rendered bad by the use therein of the words "and experienced."

2. NEW TRIAL (§ 6)—DISCRETION OF COURT— APPLICATION OF GENERAL RULE.

In a broad sense, the granting of a new trial rests in the sound discretion of the trial judge, and should not be disturbed when properly exercised; but this discretion must be directed to the facts in the case, and not to the law of the case, as to which there can be no exercise of a sound discretion, so that the rule does not refer to a case where a new trial is granted solely on the ground that the law has been erroneously given when the fact is otherwise.

On Hearing in Banc.

3. DAMAGES (§ 132)—EXCESSIVE DAMAGES— PERSONAL INJURIES TO PASSENGER.

A passenger on a street car was injured in a collision and sustained an oblique fracture of the large bone of her left leg between the knee and ankle and a sprain and bruises in her back. Her right side and hip were bruised, and likewise her right foot and leg principally between the knee and ankle. After the injury she appeared to be afflicted with permanent nervousness, but the injury to her hip was not classed as permanent, nor the bruises mentioned, but the left leg was shortened about an inch. She was in the hospital for 11 weeks and used crutches till the June following the accident on November 4th. Held, that a verdict for $7,595 was not excessive.

Graves, J., dissenting in part.

In Banc. Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Esther Loftus against the Metropolitan Street Railway Company. There was a verdict for plaintiff, and from an order granting a new trial plaintiff appeals. Reversed.

The following is the opinion of GRAVES, J., in division:

"This is a companion case of the case of Elizabeth Price v. Metropolitan Street Railway Company (decided at this term) 119 S. W. 932. Both cases grew out of the same accident, and both were tried before the same judge in the court nisi. As to the accident and the causes, or want of cause, the evidence of the two cases are along the same lines, many of the same witnesses being used, and their testimony is substantially to the same effect in each case. This case should be read with the other for a detail of the facts.

"Plaintiff was working for the firm of Emery, Bird & Thayer in Kansas City, Mo., although she lived in Kansas City, Kan. She boarded a street car at Grandview, in Kansas City, Kan., and then transferred and got on the front end of the trailer or coach on the Twelfth Street train going east from Mulberry street, which train was wrecked, as fully stated in the companion case. This plaintiff was standing up in the front end of the coach or trailer and was seriously injured. The order of her testimony was such as we find in the other case; that is to say, the plaintiff was not content with showing the collision, the attendant circumstances, and her consequent injuries, and the relationship of passenger and carrier, but proceeded, in chief, to introduce other evidence. She sued for $15,000, and, the cause being submitted to the jury, a verdict in her favor for the sum of $7,595 was returned by the jury. The negligence charged in the petition is thus stated: `And at a point commonly known as the Twelfth Street Incline, the defendant carelessly and negligently caused and permitted the train on which plaintiff was riding as a passenger to come in violent collision with another train of defendant's, such other train being on said Twelfth street and on said incline as aforesaid. That said collision was occasioned without any fault on the part of plaintiff, but by reason of the negligence as aforesaid of the defendant. That said cars collided with great force and violence, wrecking both trains of defendant, in which collision and wreck plaintiff was injured as follows.' Defendants answer was a general denial. After verdict was returned, the defendant filed its motions for new trial and in arrest of judgment, which motions were by the court sustained by an order of record in the language: `Now on this day it is ordered by the court that the motion for a new trial and motion in arrest of judgment be and the same are hereby sustained because the court erred in giving instruction "No. One P.," to which the plaintiff excepts.' Said instruction 1P, reads thus: `The court instructs the jury that, if you believe from the evidence that the plaintiff was a passenger upon a train of defendant at the time she claims to have been injured, then the due obligation of the defendant to plaintiff was to use the highest practicable degree of care of very prudent, skillful, and experienced men engaged in that kind of business, to carry her safely, and a failure of the defendant, if you believe there was a failure, to use such highest degree of care, would constitute negligence on its part, and defendant would be responsible for all injuries resulting to plaintiff, if any, from such negligence, if any. And if you believe from the evidence that there was a collision between two trains of defendant on one of which plaintiff was a passenger, if you believe she was a passenger thereon, the burden of proof is cast upon the defendant to establish that there was no negligence on its part, and that the injury, if any, was occasioned by inevitable accident, or by some cause which such highest degree of care could not have avoided, and if defendant has not shown that there was no negligence on its part, or that the injury was occasioned by inevitable accident, or by a cause that said highest degree of care could not have avoided, you will find for plaintiff, provided she was injured in said collision.' Much evidence, medical and lay, was introduced as to the character of plaintiff's injuries, as also there was evidence as to the condition of her health prior and subsequent to the accident. So, too, there was evidence of her earnings at date of injury. In this case there was for the defendant the additional evidence of the train crew on the train going up the incline, which collided with the one coming backward down the incline. Their testimony was to the effect that the appliances, rope, and other things were in proper condition, and that the trains ran 2½ minutes apart at the time. This sufficiently states this case when it is taken and read with the Price Case, supra. Points made will be noted in the opinion.

"1. In this case, as in the case of Price v. Metropolitan Street Railway Co. (just decided) 119 S. W. 932, the defendant attacks the propriety of giving instruction No. 1P. The instruction is identical with the one given in the Price Case, and what we have said therein is applicable here. The defendant goes one step further with the contention here, and charges that the use of the words `and experienced' renders the instruction bad. Defendant seems to have impressed the learned trial judge with the alleged error in this instruction, in this case, although unable to so impress him in the Price Case. The use of the words `and experienced' did not render this instruction faulty. Magrane v. Railway Co., 183 Mo., loc. cit. 128, 81 S. W. 1158; Heyde v. Transit Co., 102 Mo. App., loc. cit. 541, 77 S. W. 127. In the Magrane Case, supra, Valliant, J., in speaking of the degree of care required of a carrier toward its passenger, says: `It is a very high degree of care, but not the utmost care that human imagination can conceive. It is the highest degree of care that can reasonably be expected of prudent, skillful, and experienced men engaged in that kind of business. The term "as far as is capable by human care and foresight" in this connection is liable to be misconstrued by a jury as meaning care to the utmost limit imaginable—that is, care without limit—whereas, the highest degree of care practicable among prudent and skillful men in that business is all that can reasonably be expected of any men, and it is all that the law demands.' In the latter case, Goode, J., said: `The court gave an instruction that if the jury found the agents, servants, and employés of the defendant in control of the car on which plaintiff...