Logan v. United Rys. Co. of St. Louis

• Decision Date: 02 July 1912
• Citation: 166 Mo. App. 490,148 S.W. 444
• Parties: LOGAN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

148 S.W. 444

166 Mo. App. 490

LOGAN v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

July 2, 1912.

1. RELEASES (§ 43)—MODE OF ATTACKING.

Under the direct provisions of Rev. St. 1909, a release, when fraudulently or wrongfully procured from plaintiff, may be attacked in the reply, or in the petition as an anticipated defense.

2. RELEASE (§ 58)—VALIDITY—QUESTION FOR JURY.

In an action against a street railroad company, where defendant set up a release, and plaintiff claimed that it was fraudulently procured while she was in an irresponsible mental condition, held that, under the evidence, the question was for the jury.

3. APPEAL AND ERROR (§ 1056)—RELEASE (§ 51)—REVIEW—HARMLESS ERROR.

In an action against a street railroad company for injuries to a passenger, where it appeared that the injuries were chiefly nervous, the exclusion of evidence that plaintiff had domestic difficulties owing to her husband's intemperate habits was harmless, although plaintiff's physician had stated that those difficulties might affect her nervous condition; it not being shown when they occurred, or what was their connection with the accident.

4. CARRIERS (§ 305)—INJURIES TO PASSENGERS —NEGLIGENCE.

In an action against a street railroad company for injuries which a passenger received, owing to explosions in the controller box or other machinery, where it appeared that the motorman failed to throw off the electricity and permitted the car to run for several blocks after the explosions and flames began, there was a causal connection between the panic of the passengers caused by the flames and the negligence of the motorman in failing to stop the car.

5. DAMAGES (§ 132)—PERSONAL INJURIES— AMOUNT.

In a personal injury action, where it appeared that plaintiff, who was earning $25 a month, was so prostrated by the accident that she remained for 16 weeks in the hospital and was compelled to expend more than $250 in effecting a cure, an award of $800 damages was not excessive.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Kate Logan against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover damages for injuries alleged to have been sustained by plaintiff while a passenger on a street railway car, owned and operated by defendant on its line of railway in the city of St. Louis.

The petition in the case, setting out the fact of plaintiff being a passenger, avers that when the car was proceeding east on Washington avenue in the vicinity of Ewing avenue, the car being propelled by electricity, "there were sudden, violent and unusual explosions in the controller box or other machinery, appliances or equipment of said car, due to the negligence and carelessness of the defendant in the care or operation of said car; that flames and smoke shot back into said car from said controller box or other machinery, appliances and equipment on said car, burning and choking passengers thereon, and setting fire to the front portion thereof; that the motorman in charge of said car (a servant and employé of defendant) retreated into said car and negligently and carelessly failed to turn off the electric power or apply the brakes to said car, until it had run several blocks, thereby permitting said explosion, fire and smoke to continue to occur; that the conductor in charge of said car (a servant and employé of defendant) likewise negligently and carelessly failed to turn off the electric power or apply the brakes or to use any effort to stop said car, and after said car had stopped, to open the doors of said car, which had to be broken open, without the assistance of said conductor; that in consequence of the premises, plaintiff and other passengers on said car, being in positions of apparent and imminent peril, endeavored to escape therefrom; that in doing so, plaintiff, owing to the flames, smoke, the crowded condition of said car and the excited condition of the passengers thereon, caused by the carelessness and negligence of defendant as aforesaid, was thrown or pushed between the seats of said car; that plaintiff subsequently got as far as the door of said car and then lost consciousness; that when she recovered consciousness she was seated on the ground by a fence; that plaintiff's head was severely bruised, her arm and back severely bruised and sprained, and her nervous system greatly and permanently injured and shocked; that plaintiff was confined to the hospital for a period of, to wit, sixteen weeks; that she has been incapable of pursuing her ordinary avocation, which is that of laundress, since the date of said injury, and is unable to pursue regularly any avocation at the time of the filing of this suit." Charging that her injuries are permanent and her earning capacity greatly diminished, if not entirely destroyed, and that she had incurred expense to the amount of $250 for hospital services, medicine, medical attention and nursing, and will be obliged to incur expense for medicine in the future and that she still suffers and in the future will suffer great pain of body and mind because of the injuries brought about by the carelessness and negligence of defendant, she has been damaged in the sum of $10,000.00, she demands judgment for that sum.

The answer, after a general denial, sets up a release claimed to have been executed by the plaintiff the day following the accident. This release purports to be in consideration of $15.00 paid plaintiff.

The reply, denying the allegations of the answer, sets up that on the morning of the day that plaintiff was injured, an agent of the defendant called on plaintiff with reference to the injuries; that at that time she was in the deepest distress and bodily pain, her nervous system unstrung and her mind wandering; that she required the assistance of eyeglasses to read and did not have any eyeglasses at hand at that time; that if she signed the release as set forth in the answer, she was unable to understand and did not understand the contents thereof or what she was doing, on account of her physical and mental condition, and that if the release set out was procured from her, it was wrongfully and fraudulently procured while she was in that condition; that while the agent of defendant gave or left with plaintiff or some one for plaintiff, an order on the treasurer of defendant for $15.00, plaintiff was not conscious and had no recollection of that transaction; that she had never cashed the check or order or received any money therefor, and averring tender of the check or order to defendant before filing the suit, defendant's refusal to accept it and readiness of plaintiff at all times to surrender it, and that as she has deposited it with the clerk of the court for the use of defendant, she again tenders it.

The testimony introduced by plaintiff as to the facts attendant upon the accident was substantially as set out in the petition.

Plaintiff herself testified that overcome by the panic and by fright, and by the smoke in the car, she lost consciousness and when she came to herself she was sitting on the curb of the street and was taken by some one to a doctor's office. Attempting to go to her place of employment, she became very sick and vomited, but reached her home; did not remember going to bed or getting up the next morning, nor going downstairs. The first time that she remembers anything as occurring the day following the accident, was when her sister called the afternoon of that day and asked her if she did not want to see the doctor. After her sister suggested that, she went upstairs and went to bed. In a day or two she went to a hospital. Asked if she remembered a representative or claim agent of defendant calling on her in the morning of that day, she said she did not. Asked if she remembered signing a release or anything of that kind, she said she did not. She identified her signature to a paper which was shown to her and afterwards produced in evidence, and is the release pleaded, but she denied in the most positive terms any recollection of ever having seen or talked to the agent of defendant who procured her signature to the release, and denied, both on cross and redirect examination and in the most positive manner, any recollection of ever having signed or assented to it. It is dated the 6th of March, 1909, and is witnessed by a fellow employé of plaintiff and by the representative of defendant who was there making the settlement. No money was paid plaintiff under this release but a check for $15.00 was given her which she had never cashed. Plaintiff further testified that she was 44 years old, and is married, but while now living with her husband, had been separated from him. She was confined to the hospital about sixteen weeks; had contracted for her own board there, some $7.50 a week; had been obliged to give up all employment; had been earning about $25.00 per month as laundress.

On the part of defendant, the agent who had represented its claim department in obtaining the release, testified very minutely and positively to all the transactions connected with the release and the conversation with plaintiff, in which he testified that she had told him about the accident and what had occurred and what she had done subsequently to it; about her visit to the physician, etc.

The physician who attended plaintiff testified to her objective symptoms and that she presented the appearance of a woman under considerable depression, appeared greatly depressed and quite nervous; that was all that the objective symptoms disclosed. The physician stated that if allowed he could state the subjective symptoms but on...