McCarthy v. St. Louis Transit Company

• Decision Date: 15 November 1904
• Citation: 83 S.W. 298,108 Mo.App. 317
• Parties: McCARTHY, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Court of Appeals

83 S.W. 298

108 Mo.App. 317

McCARTHY, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

November 15, 1904

Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.

AFFIRMED.

Judgment affirmed.

Boyle Priest & Lehmann, George W. Easley and Edward T. Miller for appellant.

The court erred in giving plaintiff's instruction 3 defining the measure of damages as follows: "If the jury find for the plaintiff, they should assess his damages at such sum as they believe from the evidence will be a fair compensation to the plaintiff. (a) For the pain of body and mind that plaintiff has suffered, or will suffer, by reason of his injuries, and directly caused thereby. (b) For any loss of earnings, if any, that he has suffered, or will hereafter suffer, by reason of said injury and directly caused thereby if you find from the evidence that plaintiff will suffer any such loss." The above instruction is in three divisions. The first and second make a complete instruction taken together, so also do the first and third. An instruction should not assume as true a controverted fact. Minnier v. Railroad, 167 Mo. 99, 66 S.W. 1072; Day v. Railway, 81 Mo.App. 471; 1 Joyce on Damages, sec. 91; Streng v. Brewing Co., 64 N.Y.S. 34, 7 Am. Neg. Rep. 650; Schwend v. Transit Co., 80 S.W. 40; Maimone v. Railroad, 68 N.Y.S. 1073; Wheeler v. Boone, 106 Iowa 235, 78 N.W. 909; Collins v. City of Janesville, 99 Wis. 464, 75 N.W. 88; McBride v. Railway (Minn.), 75 N.W. 231; LaFave v. City of Superior (Wis.), 80 N.W. 742.

S. P. Bond for respondent.

OPINION

GOODE, J.

Action for damages for an injury to the plaintiff's foot and ankle in alighting from a street car, caused by the premature starting of the car. Only one point is made here and that is against the instruction on the measure of damages. We see nothing wrong with that instruction. Defendant's counsel insist the jury were not required to find the plaintiff would suffer pain in the future as the condition of awarding damages for future pain but that, instead, the court told them he would have future suffering. The instruction conveys no such meaning. The court did not tell the jury the plaintiff would suffer pain, but left that to be found by them. The charge in this case is free from any infirmity due to leaving it to the jury to award damages for conjectural future pain which might possibly be suffered; as it allowed damages for only such pain as plaintiff will suffer. An instruction...