Mabrey v. Cape Girardeau & Jackson Gravel Road Co.

• Decision Date: 25 February 1902
• Citation: 92 Mo. App. 596,69 S.W. 394
• Court: Missouri Court of Appeals
• Parties: MABREY v. CAPE GIRARDEAU & JACKSON GRAVEL ROAD CO.

69 S.W. 394

92 Mo. A. 596

MABREY v. CAPE GIRARDEAU & JACKSON GRAVEL ROAD CO.

Court of Appeals at St. Louis, Missouri.

February 25, 1902.

TOLL ROADS — UNSAFE CONDITION — PERSONAL INJURIES — TRESPASSERS — PLEADING — EVIDENCE — DAMAGES — LOSS OF TIME — VALUE.

1. Where persons riding on a toll road paid toll to a certain point, at which they usually left the road, and, on reaching it, decided, because of darkness and an approaching storm, to continue thereon, they were not thereby rendered trespassers, or precluded from recovering for injuries caused by defects in the road.

2. Where a ditch at the side of a toll road was shown to have been dangerous for some time, to the knowledge of the superintendent, there was evidence of negligence, requiring submission to the jury, in an action for personal injuries alleged to have been caused by the road's unsafe condition.

3. In an action for personal injuries, complainant alleged injury to his stomach and bowels, and testified that a wheel of a wagon struck him in that region, knocking him senseless, and causing confinement to bed for three weeks. An attending physician testified that a few days after the accident he found a hard cake in plaintiff's left side, from which general peritonitis set in, and that plaintiff's ailment was traumatic peritonitis. Another physician said plaintiff had acute peritonitis, and showed a few bruises. Held, that there was no failure to prove the injury alleged.

4. Where the petition in a personal injury suit alleged that one of the wheels of a wagon fell on plaintiff's stomach and bowels, inflicting injury, and the testimony all showed that plaintiff's injuries were in that region, an instruction authorizing a verdict if the jury found plaintiff was injured by the means alleged, without restricting such injuries to any specific region of plaintiff's body was not error.

5. A petition in a personal injury action seeking recovery for loss of time and earnings need not allege the value of the time lost, or plaintiff's earning power.

6. Evidence in a personal injury action that plaintiff was a farmer engaged in raising a crop for a share thereof was sufficient to justify submission to the jury of his loss of time and earnings, as an element of damage.

7. Where a young man engaged in farming on shares was so injured by defendant's negligence as to be confined to his bed for three weeks with acute peritonitis, a verdict for $600 was not excessive.

Appeal from circuit court, Cape Girardeau county; Henry C. Riley, Judge.

Action by O. F. Mabrey against the Cape Girardeau & Jackson Gravel Road Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R. B. Oliver, for appellant. W. H. Miller, for respondent.

GOODE, J.

Respondent was injured by the overturning of a farm wagon in which he was riding with his father and brother along a turnpike or toll road belonging to the defendant company, and which runs between the city of Cape Girardeau and the town of Burfordville. At the point where the injury occurred, the roadbed was in a narrow valley or depression, with sloping hillsides on either side of it, down which water flowed during a rainfall, with the result, it seems, of causing a washout or ditch on the south side of the road some seven feet wide and four feet deep. The parties in the wagon had been in the town of Jackson, and had started home late in the evening of an August day. Night overtook them, and it became dusk or dark, so they were unable to see clearly, and the left wheels of the wagon were driven into this ditch; the consequence being that the wagon capsized, throwing the occupants out, and very seriously injuring the plaintiff, who was rendered unconscious for several hours, was afterwards confined to his bed for about three weeks, and kept from his employment, which was that of a farm hand, for four weeks or more. Estimates differ as to the width of the roadway where the wagon was overturned, — varying from 11 or 12 feet to 15 feet. We find little conflict in the testimony, and the case was undoubtedly one to be submitted to the jury under appropriate instructions, provided the appellant was liable at all.

One point insisted on by the appellant for a reversal is that plaintiff and his companions had only paid toll over the turnpike to a place called "Bee Post Office," but continued to travel it beyond that point until the accident occurred. It seems that the usual way for these parties to go home from Jackson was to diverge from the toll road at Bee Post Office onto a highway known as the "Fredericktown Road;" but on this occasion, as it was getting late and dark, and a rain impending, the father, Robert Mabrey, directed his son Warren to continue along the turnpike when they reached the Fredericktown road, instead of taking the latter. That in the circumstances of this case, respondent was a trespasser on the appellant's highway, and therefore appellant is not answerable for an injury he may have received on account of defects in the road, is a proposition that cannot be entertained. The testimony shows Robert Mabrey, the father, paid the toll, and that neither the respondent, who was riding on the front seat with his brother Warren, nor Warren, who was driving, knew to what point he had paid it, nor had given any attention to the matter. In fact, the respondent was simply a passenger in the wagon, and had nothing to do with the payment of toll. But aside from this, there was no trespass anyhow, by either of the travelers. Toll had been paid at the last gate they passed, and because the old man afterwards changed his mind, and concluded to go a short distance further than he intended, it by no means follows that he and his sons became trespassers, and not entitled to a safe road to travel over. The only result of their journey being prolonged on this particular highway further than they had paid to use it was that they owed the defendant additional toll, and, we suppose, would have paid it at the next gate; or, if they were attempting to evade the payment of toll by practicing a deception on the gatekeeper, of which there is no evidence, the law prescribes a remedy and a penalty. Rev. St. 1899, § 1233. The road was too narrow, and in an unsafe condition, at the place the accident occurred, as the testimony shows, and as is virtually conceded by the appellant. Not only was the ditch into which respondent fell shown to be dangerous, but it was also shown to have been there for a long time, and that the superintendent of the gravel road company had actual notice of its dangerous state. The road was not in the condition the law required it to be kept. Rev. St. 1899, § 1226. So there was evidence tending to establish negligence on the part of the defendant, which was rightly submitted to the jury. Turnpike Co. v. Maupin, 79 Ky. 101.

Plaintiff charges that when the wagon turned over he fell on his stomach and bowels, and sustained serious and painful injuries, which averment the appellant contends was unsupported by any testimony proving the stomach and bowels were injured. We cannot agree to this assertion, for we find abundant testimony of most serious injury to one or both of those organs. The plaintiff himself swore a wheel of the wagon struck his body over the stomach and bowels, knocking him senseless, and hurting him so badly he was confined to his bed for three weeks. One of the physicians who attended the case said that a few days after the accident he found a hard cake in the left side, from which general peritonitis set up, and his bowels were swollen, though there was but slight external discoloration from bruises. He diagnosed the patient's ailment as traumatic peritonitis, due to injury. Another physician swore plaintiff had acute peritonitis, swollen bowels, and showed a few bruises. In the face of such testimony, this assignment of error, based on a supposed failure to prove the specific injury alleged, is overruled.

Another point akin to the foregoing is made against an instruction given at the respondent's request on the score that it lost sight of the nature of the injury charged in the petition to have been received by the respondent, and authorized a verdict for him if the jury found he was injured anywhere. Said instruction, after hypothecating other essentials to a recovery by the respondent, told the jury that if he was thrown down the embankment, and was injured by the wagon falling on him so as to confine him to his bed and render him unable to labor for any length of time, and that he suffered pain and mental anguish, which were occasioned by the negligence of the defendant, as previously set out, they should return a verdict in favor of the plaintiff. It was impossible for the jury to be misled by that direction, for the evidence was all one way as to where plaintiff's injuries were, and their nature. Besides, the petition does not specifically confine them to the stomach and abdominal viscera, but only says "one of the wheels of the wagon fell upon his stomach and bowels, inflicting on him serious and painful injury." There is no merit in this assignment.

The following instruction was given by the court on respondent's request: "The court instructs you that if your verdict be for the plaintiff, and you find that he was compelled to pay, or became obligated to pay, out any sum of money for medical attendance and nurse hire by reason of his injuries, as set out in instruction No. 1, you will allow him such sum for such medical attention and nurse hire as from the evidence to you may seem just and proper, not to exceed $58.75; and in estimating his damages, if you believe he was damaged, you may further take into consideration his loss of time, if any, as well as his bodily and mental pain, if any, together with the nature and character of his injuries, if any, growing out of the negligence and carelessness of defendant as set out in instruction No. 1, provided you find from the...