Malloy v. St. Louis & S. Ry. Co.

• Citation: 73 S.W. 159,173 Mo. 75
• Parties: MALLOY v. ST. LOUIS & S. RY. CO.
• Decision Date: 18 March 1903
• Court: United States State Supreme Court of Missouri

73 S.W. 159

173 Mo. 75

MALLOY v. ST. LOUIS & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 18, 1903.

CARRIERS — INJURY TO PASSENGER — PRIMA FACIE CASE — EXCESSIVE DAMAGES.

1. In an action for personal injuries sustained in a railway collision, the negligence charged was that defendant "did, by the servants in charge of said car and its servants in charge

of another of the cars, so carelessly manage and control said cars as to cause and suffer the same to collide." Held, that the rule that if, instead of pleading generally the relation of carrier and passenger, and the injury, and thus making out a prima facie case, plaintiff limits his right to recover to a specific act of negligence, he must prove such specific negligence, did not apply, and it was not necessary for plaintiff to show which servant so in charge of the cars was negligent.

2. The court, on appeal, will not set aside an award of damages as excessive unless the amount awarded shocks the judicial sense of right and justice.

3. In an action for personal injuries received in a collision between electric cars, plaintiff's evidence showed that his testicles, hip joint, kidneys, bladder, and spinal cord were injured, and that his abdominal wall was ruptured, compelling him to wear a truss. Held, that a verdict of $7,000 was not excessive.

Appeal from St. Louis Circuit Court; W. B. Douglas, Judge.

Action by John Malloy against the St. Louis & Suburban Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action for damages for personal injuries sustained by the plaintiff while a passenger on one of the defendant's cars, near Ramona Park, in St. Louis county, on September 7, 1900, in consequence of a collision between the car upon which plaintiff was riding as such passenger and the Kinloch palace car, on which the president of the defendant was riding. The negligence charged in the petition is that the defendant "did, by the servants in charge of said car and its servants in charge of another of the cars, so carelessly manage and control said cars as to cause and suffer the same to collide." The answer is a general denial. The evidence shows that the plaintiff and his wife boarded one of the defendant's cars at Kinloch Park, in St. Louis county, on the evening of September 7, 1900, to be transported to the city of St. Louis; that he paid the fare for both; that his wife was seated, but, owing to the crowded condition of the car, the plaintiff was compelled to stand, which he did at about the fifth seat from the front of the car; that the car proceeded towards the city, and when it got near Ramona Park, and while it was running at a very rapid rate (varying, according to the witnesses, from 20 to 35 miles an hour), it collided with the president's private car, the Kinloch, in consequence of the two cars running in opposite directions on the same track at the same time. The collision occurred on a curve in the track, by which, and the underbush and small trees that were growing near the track, the view of the motormen on the two cars was obstructed so that neither saw the other in time to stop his car and prevent the collision, and neither knew prior to the instant before the accident that the other was on the same track. The plaintiff was seriously injured by the collision, the particulars of which will be referred to in the course of the opinion. There were a verdict and a judgment for the plaintiff for $7,000, and the defendant appealed, and assigns two principal errors, to wit, first, that the plaintiff failed to make out a prima facie case; and, second, that the damages are excessive — and of these in their order.

McKeighan & Watts and Robt. A. Holland, Jr., for appellant. A. R. Taylor, for respondent.

MARSHALL, J. (after stating the facts).

1. Prima Facie Case. The defendant contends that the plaintiff failed to make out a prima facie case, and that the court erred in not ordering a nonsuit. The contention in this regard is that instead of pleading general negligence of the carrier, under which a prima facie case would be made out by simply establishing the relation of carrier and passenger, and the collision, the plaintiff predicated a right to recover upon the negligence of the defendant's servants in charge of the two cars, and then wholly failed to show that these servants were guilty of any negligence whatever; and the defendant claims that the exact point was decided in Feary v. Railroad, 162 Mo. 75, 62 S. W. 452. The rule of law is correctly stated in that case to be that if, instead of pleading generally the relation of carrier and passenger, and the injury, and thus making out a prima facie case, the plaintiff limits his right to recover to a specific act of negligence, he must prove such specific negligence, and is not entitled to the benefit of the general rule. The rule thus laid down is undoubtedly correct, but it does not have the effect claimed for it upon this case. In the Feary Case the plaintiff limited the negligence to the act of the motorman in allowing the lever to slip out of his hands, thereby causing the car to run down the incline. The defense in that case was unavoidable accident. The issues were thus sharply drawn. The jury found for the defendant, thereby finding that it was unavoidable accident. After thus taking his chances before the jury and losing, the plaintiff claimed he was entitled to recover under the general rule, which he had not invoked at any time until after the verdict. It was held that he was not entitled to thus change his position, but that, having elected to narrow the issues, he could not claim the benefit of the general rule after he had tried his case on the lines he had chosen and had lost. But the case at bar is by no means similar or analogous. The petition in this case charges that the collision occurred in consequence of the negligence of the defendant's servants in charge of the cars. In a restricted sense, that might mean only the motorman and conductor, because they are the only servants on the car. But in a more comprehensive sense, it might mean any servant of the defendant who was in any way directly charged with the running of the cars. And as was...