McDonald v. Metropolitan St. Ry. Co.

• Decision Date: 27 May 1912
• Citation: 147 S.W. 1130
• Parties: McDONALD v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

147 S.W. 1130

McDONALD v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

May 27, 1912.

1. STREET RAILROADS (§ 117) — INJURIES TO TRAVELERS — QUESTION FOR JURY.

In an action for injuries to a traveler while walking along a street railway track by being struck by a car approaching her from the rear, evidence held to require submission of the case to the jury under the humanitarian rule.

2. DAMAGES (§ 216) — PERSONAL INJURIES — MEDICAL TREATMENT — MEDICINE AND NURSE HIRE — INSTRUCTIONS.

Besides plaintiff's injury to her person she claimed in her petition to have incurred expense of $50 for medical treatment, $5 for medicines, and $25 for nurse hire, and had been damaged by reason of the foregoing in the total sum of $10,000. Held, that an instruction authorizing the jury to find damages for injury, expense for medical treatment, medicines, and nurse hire, "in all not to exceed $10,000," was erroneous as permitting the jury to find any amount for such expenses inside the limit of $10,000.

3. DAMAGES (§ 131) — PERSONAL INJURIES — EXCESSIVE VERDICT.

Plaintiff was bruised about the body by collision with a street car and thereby lost sleep for some time and her injuries were painful. There was no testimony, however, to show that they were permanent or serious. Held, that a verdict allowing plaintiff $6,000 was excessive and should be reduced to $4,000.

Appeal from Circuit Court, Jackson County; Jas. H. Slover, Judge.

Action by Lola B. McDonald against the Metropolitan Street Railway Company. Judgment for plaintiff and defendant appeals. Affirmed on condition of remittitur.

John H. Lucas and Bruce Barnett, both of Kansas City, for appellant. J. P. Fontron and A. F. Sherman, both of Kansas City, for respondent.

ELLISON, J.

Plaintiff was run upon by one of defendant's street cars and suffered injury for which she instituted this action. She recovered judgment in the circuit court for $6,000.

Plaintiff's case is placed under what is known as the humanitarian rule. The evidence tended to show that defendant's railway consisted of a double track and that at the place where she was hurt there was a cinder pathway between the two tracks, commonly used by pedestrians. That plaintiff was walking along in the east track, with her back to the approaching car, while a companion was in the pathway, and had been for such time as to make clear that the motorman saw her and by ordinary care could have avoided striking her. He gave testimony tending to excuse himself, but, as the verdict was for plaintiff, we must accept her version of the matter as the facts of the case. In doing this we are of the opinion that, notwithstanding her own negligence, she made a case for the jury under the humanitarian rule.

Besides her injuries, she claimed in her petition to have incurred expense of $50 for medical treatment, $5 for medicines, and $25 for nurse hire, and "that she had been damaged by reason of the foregoing in the total sum of $10,000." In an instruction...