Loomis v. Metropolitan St. Ry. Co.

• Decision Date: 01 March 1915
• Docket Number: No. 11416.,11416.
• Citation: 188 Mo. App. 203,175 S.W. 143
• Parties: LOOMIS v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

175 S.W. 143

188 Mo. A. 203

LOOMIS v. METROPOLITAN ST. RY. CO.

No. 11416.

Kansas City Court of Appeals, Missouri.

March 1, 1915.

Rehearing Denied April 5, 1915.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by Mary C. Loomis against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John H. Lucas, of Kansas City, for appellant. Gage, Ladd & Small and Porter B. Godard, all of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's husband was killed by falling under one of defendant's street cars, and, charging his death to have been caused by defendant's negligence, she brought this action for damages, and recovered judgment for $6,000 in the trial court..

There were two cars. The rear one was called a "trailer." Plaintiff and her husband endeavored to board the rear of the front car. She succeeded, but he had taken hold of a hand bar and, with one foot on the step and the other on the ground, was in the act of getting aboard, when the car suddenly started and threw him to the ground, so that the rear car ran over him. Some of the evidence tended to show that a lady passenger, who was in the act of leaving the car, was thrown by the sudden jerk, so that she struck deceased and caused, or partially caused, him to fall under the rear car.

There is no doubt of there being ample evidence tending to support defendant's negligence, and contributory negligence was neither pleaded nor shown.

Defendant insists there was error in giving plaintiff's instruction No. 2, and in refusing its instructions 5 and 6, on the subject of the measure of damages. The one given for plaintiff directed that, if the verdict was for her, it should be in a sum not less than $2,000 nor more than $10,000, in the discretion of the jury, and that, in determining the amount, the jury might take into consideration the pecuniary loss occasioned to the plaintiff, and also "you may take into consideration the facts constituting negligence on the part of defendant." A similar instruction to plaintiff's was approved by the Supreme Court in Boyd v. Railroad, 249 Mo. 110, 120, 155 S. W. 13, Ann. Cas. 1914C, 37. But defendant contends that that part informing the jury that they may consider "the facts constituting negligence" was not considered by the court. On the contrary, we think that part of the instruction was in the mind of the court, as is shown in the discussion found from pages 120 to 126 of 249 Mo., pages 14 to 17 of 155 S. W. (Ann. Cas. 1914C, 37), especially where it is stated on the latter page that, in order for the jury to exercise its discretion, evidence should be received of the deceased's age, condition of health, earning capacity, "together with the facts and circumstances attending the killing."

Defendant's refused instructions were as follows:

"(5) The court instructs the jury in this case that, even if you should find that deceased was a passenger on the car mentioned in the evidence at the time of the injury complained of, then you are further instructed in this connection that you are not authorized, under the law, to assess her damages in excess of $2,000."

"(6) The court instructs the jury in this case that if you believe from the evidence that the deceased had retired from business about four years prior to the injury, and that he was not engaged in any gainful pursuit or calling at the time of the injury, and had not been so engaged for about four years prior to the injury, and that, during the said time, deceased had not been earning any income on account of his own efforts either mentally or physically, but that he was a man of means, and that by his last will and testament he willed all his property, real and personal, to the plaintiff, and that she is now deriving the income therefrom, then you are instructed that plaintiff did not suffer any pecuniary loss on account of the death of her husband,...