Maguire v. St. Louis Transit Co.
| Decision Date | 01 December 1903 |
| Parties | MAGUIRE, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. H. D. Wood, Judge.
Judgment affirmed.
Boyle Priest & Lehmann, and George W. Easley for appellant.
(1) The motion to require the plaintiff to elect on which count he would proceed should have been sustained. Roberts v Railroad, 43 Mo.App. 289. (2) The first instruction given for the plaintiff is erroneous. It is simply holding the defendant liable for a mistake of the plaintiff--a mistake none of the other fifteen men standing there made--and which the defendant in no manner induced. This can not be good law; it is not common sense. Traction Co. v Ringgold, 78 Md. 409; 3 Am. Eng. Cas. 731; Broom's Leg. Max. (7 Ed.), p. 268; Deitrich v. Railroad, 58 Md. 347; 3 Am. Neg. Cas. 631; Pickard v. Railway, 145 Pa. St. 195; 23 At. 566; Booth on Street Railways, sec. 336; Holohan v. Railroad, 19 D. C. 316; Railroad v. Houston, 95 U.S. 702; Schepers v. Railroad, 126 Mo. 674; Werbowlsky v. Railway, 86 Mich. 276; 4 Am. Neg. Cas. 114. (3) The plaintiff by his act offered himself as a passenger. That offer did not make him a passenger. Plaintiff could not create the relation of passenger and carrier that way. It took some acceptance of him as a passenger to constitute the relation. If said car was stopping, that only indicated a purpose to accept the passengers offering themselves when the car should in fact be stopped. It is incredible that the motorman expected from ten to fifteen persons to get upon the car while it was "stopping." The fact that said car did not stop is conclusive that the motorman did not intend to take any of the party up as passengers. It is only when the car is stopped to receive passengers that the relation of carrier and passenger begins. Railroad v. James, 69 Ill.App. 600; 2 Am. Neg. Rep. 700; Smith v. Railway, 32 Minn. 1; 4 Am. Neg. Cas. 220; Breen v. Bennett, 8 C. & P. 724. But, where the car does not stop, the relation is not created. The plaintiff could not create the relation by attempting to board the moving car. Schepers v. Railway, 126 Mo. 665; Schafer v. Railway, 128 Mo. 71. (4) This question of the assumption of the risk of attempting to board a moving car must not be confused with that of contributory negligence. They are distinct. Miner v. Railroad, 153 Mass. 398; 26 N.E. 995; Nellis on St. Rys., pp. 458, 463, sec. 15; Merriweather v. Railroad, 45 Mo.App. 334; Traction Co. v. Ringgold, 78 Md. 409; 2 Am. Neg. Cas. 371; Moylan v. Railroad, 128 N.Y. 583; 27 N.E. 977. (5) The plaintiff not showing any disability at the time he tried to board the car, those in charge of it, had they seen him, would not have been required to wait until he was seated. Railway v. Chappell, 21 Fla. 175; 2 Am. Neg. Cas. 340. The Missouri rule is that they are not required to stop until the passenger is seated, but that they must start in such moderation as not to cause them to be thrown down. Dougherty v. Railroad, 9 Mo.App. 478; 81 Mo. 325; 97 Mo. 647; Bertram v. Railway, 154 Mo. 639; Conway v. Railway, 87 Me. 283; 38 A. 112. (6) The third instruction given on behalf of plaintiff is erroneous. It authorizes a recovery for future mental anguish. There was nothing in the nature or character of the accident to cause mental anguish as distinguished from bodily pain. Gerdes v. Iron & Foundry Co., 124 Mo. 361; Haniford v. The City of Kansas, 103 Mo. 172; West v. Forrest, 22 Mo. 344; McMillen v. Union, etc., Works, 6 Mo.App. 434; American Straw Board Co. v. Faust, 12 Ind.App. 421. (7) The giving of the instruction authorizing the jury to give damages for future mental anguish, distinguished from physical pain, there being no disfigurement or distortion of the person--nothing to produce mental anguish as distinguished from physical pain, either in the past or the future of the case--was error. Such damages are not recoverable, and, if they were, there is no evidence of any mental anguish, past or prospective, in the case. The nature and character of the injury do not make it even probable that future mental anguish would ensue. Railroad v. Spurney, 69 Ill.App. 540; 2 Am. Neg. Rep. 505; Railroad v. Cole, 165 Ill. 334; 46 N.E. 275; Ford v. City of Des Moines, 4 Am. Neg. Rep. 379; Railroad v. Caulfield, 63 F. 399; Bovee v. Danville, 53 Vt. 190. (8) The evidence of mental anguish must rest upon the nature and character of the injury and its natural tendency to produce anguish, and on that alone. Any other rule would open the door to the grossest frauds. Stowe v. Haywood, 7 Allen (Mass.) 124; Brown v. Railroad, 99 Mo. 319; Schmitt v. Railroad, 119 Mo. 277; Voorhees on Meas. of Dam., sec. 93; Richard III, Act 1, Scene 1; Landor's "Leofric and Godiva," p. 61.
Joseph M. Bryson and Lee W. Hagerman for respondent.
(1) The motion to elect was properly overruled. The law in this State is well settled that the same cause of action may be stated in different counts, and that, unless they are so mutually inconsistent that the proof of one disproves the other, the court will not sustain a motion to elect. Brinkman v. Hunter, 73 Mo. 172-178; Brownell v. Railroad, 47 Mo. 243; Brady v. Connelly, 52 Mo. 19; St. Louis v. Allen, 53 Mo. 49; Owens v. Railroad, 58 Mo. 386; Byrdseye v. Smith, 32 Barb. 217; Bliss, Code Pldg., sec. 120. See McQuillan's Pl. and Prac., 198, 343, 460, and cases there cited; Christal v. Crary, 80 Mo. 367. (2) The evidence offered by the defendant to prove the rule as to a car stopping for passengers when eight minutes late was properly excluded. 27 A. & E. Ency. of Law, p. 784. (3) It is well settled in this State, that street railway companies, by violating the provisions of an ordinance regulating the running of cars, gives to an injured party, who, by his own conduct, is within the pale of the provisions of the ordinance, a cause of action, wholly irrespective of the question whether or not he was technically a passenger within the rules of the common law. Jackson v. Railroad, 157 Mo. 621; Hutchinson v. Railway, 161 Mo. 246; Weller v. Railway, 164 Mo. 205; Wendler v. Peoples' House Fur. Co., 165 Mo. 527; Feeback v. Railway, 167 Mo. 206; McAndrew v. Railway, 88 Mo.App. 97. (4) The third instruction given in behalf of plaintiff is correct. Future mental anguish or suffering is a proper element for a jury to consider in assessing damages. The general rule is that, while mental anguish--without any sort of physical injury and physical pain and suffering--can not be compensated in damages except where, as in libel and slander, there is, in the nature of the actionable wrong itself, an element of personal insult and an injury to the sense of honor and self-respect, yet, where mental anguish is caused by the presence of physical pain and suffering, and is connected with physical injury as an incident, then the jury may consider it in rendering compensation. Railway v. Jones, 49 F. 343; Ball v. Mabry, 91 Ga. 781; Railroad v. Johnson, 135 Ill. 641; Railway v. Newell, 104 Ind. 264; Curtis v. Railroad, 18 N.Y. 534; Weller v. Railway, 53 Hun 372 (6 N.Y.S. 320); Stuts v. Railway, 73 Wis. 147; Trigg v. Railroad, 74 Mo. 147; Gurdes v. Iron Foundry Co., 124 Mo. 361; Whalen v. Railroad, 60 Mo. 323; West v. Forrest, 22 Mo. 344; McMillan v. Union Works, 6 Mo. 434; Smitz v. Railroad, 119 Mo. 256; Brown v. Railroad, 99 Mo. 319; Am. Show B'd Co. v. Faust, 12 Ind. 421; Bonee v. Danville, 53 Vt. 190; Stone v. Haywood, 7 Allen (Mass.) 124. (5) The doctrine of the Missouri cases is that a general verdict is permissible where the same cause of action is stated in more than one count, both in civil cases--Owens v. Railroad, 58 Mo. 386; Lancaster v. Ins. Co., 92 Mo. 460; Long v. Ormsby Co., 43 Mo.App. 253--and in criminal cases--State v. McCue et al., 39 Mo. 112; State v. Pitts, 58 Mo. 556; State v. Nolan, 111 Mo. 473; State v. Harmon, 106 Mo. 653. (6) Where there is violation of an ordinance, that in itself is negligence. The verdict of the jury in view of the evidence is reasonable, and the appeal court would not be justified in remanding the case on this ground. If it is possible that a reasonable man in view of the undisputed testimony of injury, against which the defendant company offered no testimony, not even calling in their own doctor, who had examined him--if it is possible that a reasonable, unprejudiced jury should have thought that $ 3,500 was not too large a recompense--then the appellate court should not disturb the verdict.
The petition is in two counts. The first alleges, in substance that on November 24, 1902, plaintiff, desiring to become a passenger on one of defendant's cars bound eastward on Maryland avenue, in the city of St. Louis, took his stand at the southeast corner of Euclid and Maryland avenues, the proper and usual place where defendant's cars stopped to take on passengers; that when the car approached Euclid avenue, he signalled the motorman in charge of his desire to become a passenger and the motorman, as he approached Euclid avenue and crossed the same, slowed down his car; that on reaching the south crossing where the plaintiff was standing, the car was slowed down to a stopping point, leading plaintiff to believe that the car had stopped to receive him and others standing by who wished to become passengers, when plaintiff took hold of the handrail at the rear end of the car and attempted to board the same, but while he was in the act of getting on, the defendant negligently, carelessly and recklessly failed to let the car remain standing a sufficient length of time to allow plaintiff to get on the car, but started it forward with great suddenness and speed,...
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