McKinstry v. St. Louis Transit Company

• Decision Date: 18 October 1904
• Parties: McKINSTRY, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Court of Appeals

82 S.W. 1108

108 Mo.App. 12

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

Court of Appeals of Missouri, St. Louis

October 18, 1904

Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.

Judgment affirmed.

Boyle Priest & Lehmann, Geo. W. Easley and Glendy B. Arnold for appellant.

(1) The motion in arrest of judgment should have been sustained. The petition does not state facts sufficient to constitute a cause of action. It does not allege that the car did not stop a reasonable time to allow plaintiff to alight. Nor does it allege that the conductor knew or should have known that the plaintiff was in the act of alighting. Without the allegation of one or the other of these things no cause of action is stated. If the rule of highest degree of care can be held to apply to any other matter than those over which the carrier has absolute and undivided control, like its road and rolling stock or the like, it cannot be held to apply to losses wherein the plaintiff can or may be an actor and factor in the production of the injury. This rule of highest degree of care can only be applied to that character of accidents which raises a presumption of negligence. Miller v. Transit Co., 81 S.W.--But if the rule is applicable the standard of the "very prudent person" falls short of the requirements of the law. It does not contain the qualifications of the prudent man engaged in like business or under like circumstances. Dougherty v. Railroad, 97 Mo. 667, 8 S.W. 900, 11 S.W. 251; Sullivan v Railroad, 133 Mo. 1, 34 S.W. 566; Smith v Railroad, 108 Mo. 249, 18 S.W. 971; Furnish v. Railway, 102 Mo. 450, 15 S.W. 315. (2) The court erred in giving the fourth instruction for plaintiff. It authorizes the plaintiff to recover for past pain of body and mind already suffered, and for such as she may suffer in the future. It authorizes the plaintiff to recover for any earnings she has lost or may lose, by reason of the accident. It authorizes the plaintiff to recover for any expenses "for medicines or medical attention which . . . have been necessitated or may be required by reason of the accident." This character of instruction has been expressly condemned by this court. Kucera v. Murrill Lumber Co., 91 Wis. 637, 61 N.W. 374; Hardy v. Railroad, 89 Wis. 183, 61 N.W. 771. Block v. Railroad, 89 Wis. 371, 61 N.W. 1101; Russell v. Columbia, 74 Mo. 480; Bradley v. Railroad, 138 Mo. 311, 39 S.W. 763; Chilton v. St. Joseph, 143 Mo. 199, 44 S.W. 766; Bigelow v. Railroad, 48 Mo.App. 374; Ross v. Kansas City, 48 Mo.App. 446; Fry v. Railroad, 45 Iowa 416; White v. Railroad, 61 Wis. 636; 50 Am. Rep. 154; Cameron v. Trunk Line, 10 Wash. 507, 39 P. 128; Meeteer v. Railroad, 63 Hun 533, 18 N.Y.S. 561; Curtis v. Railroad, 18 N.Y. 534, 75 Am. Dec. 258; 3 Sutherland on Damages (Ed. 1884), page 261; 1 Sutherland on Damages (3 Ed.), sec. 123, and vol. 3, sec. 944; 1 Joyce on Damages, secs. 244-245; Voorhies on Damages, page 72, sec. 46; Watson on Personal Injuries, secs. 302-303; Schwend v. St. Louis Transit Co., 80 S.W. 40.

D. D. Holmes for respondent.

(1) When this case was tried the ruling authority in this State on the use of the word "may" in this manner was McLain v. Railroad, 100 Mo.App. 374, 73 S.W. 909. (2) Where the judgment is for the right party it should be affirmed even though there is error in the instruction. 2 Thompson on Trials, secs. 2401, 2403, pp. 1746, 1749; R. S. 1899, sec. 865; Henry v. Railroad Co., 113 Mo. 538, 21 S.W. 214; Feary v. Railroad, 162 Mo. 109, 62 S.W. 452; Bowman & Co. v. Lickey, 86 Mo.App. 63; Wagner v. Elec. Co., 82 Mo.App. 300; Fields v. Railroad, 80 Mo.App. 607.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J.

An error is ascribed to the trial judge in overruling the motion in arrest, levelled at the complaint as not stating facts sufficient to constitute a cause of action against defendant, and also in giving instructions to the jury submitting the issue whether the car stopped a sufficient length of time to enable the plaintiff, acting with diligence, to alight in safety, the substantial and assailed paragraphs of the petition are reproduced as follows:

"Plaintiff states that on or about the fifth day of April, 1903, she was a passenger on one of the defendant's west-bound Olive street cars; that as said car approached the intersection of said Olive street and said Whittier street she signalled the agents and servants of the defendant, in the employ of the defendant and in charge of and operating said street car, to stop said car at the intersection of said streets, for the purpose of allowing her to alight from said car at said place; that when said car reached the west crossing of said intersection of said streets the said agents and servants of the defendant brought said car to a stop; that while said car was so stopped at said place as aforesaid, and while the plaintiff, in the exercise of ordinary care, was in the act of alighting therefrom, but before she had fully left the same, the said agents and servants in charge of and operating said car, negligently, carelessly and recklessly caused said car to be started forward with a violent and sudden jerk, which caused plaintiff to fall with great force and violence, striking the ground with her back and head, thereby greatly and permanently injuring plaintiff on her back and head, and also causing a severe injury to plaintiff's right arm, and also causing permanent internal injuries to plaintiff, and also permanently injuring plaintiff's nervous system.

"Plaintiff states that by reason of the said injuries sustained as aforesaid she has suffered great pain and anguish of body and mind; that she was and is compelled to expend large sums of money for medicines and medical treatment in and about the treatment of her said injuries; that she has been permanently crippled and disabled from labor and has lost and will continue to lose the earnings thereof; that she is permanently cripped and injured for life."

The answer was a general denial of the allegations of the petition. On behalf of plaintiff the evidence comprised the testimony of herself, a fellow-passenger and an attending physician, and conduced to establish the occurrence of the casualty as pleaded in her petition and also that the injuries resultant were painful, and permanently impaired her ability to earn her livelihood as a domestic and house servant, as she had been employed for many years prior to and at time of the accident and earning fifteen dollars per month. The only witness introduced by defendant was a physician connected with its medical department, specializing surgery, who treated her for nine days succeeding the injury.

1. The specific objections made to the petition are that it is devoid of allegations, that the car did not stop a reasonable time to allow plaintiff to alight, and that the conductor knew or should have known that plaintiff was in the act of getting off. While the language charged to be essential and omitted is not employed in the complaint, the petition in lucid and unequivocal terms, with elaborate detail, portrays the same situation by necessary and unavoidable intendment and assuredly after trial without objection to its sufficiency and verdict rendered, is beyond criticism. Further the defendant has impressed such interpretation upon the declaration of the cause of action as its substantial and actual meaning, by obtaining an instruction from the court in its behalf couched in the terms complained of as lacking, defining the duty of defendant and presenting for the consideration of the jury the precise question whether, under all the facts and circumstances in evidence, plaintiff was given a reasonable time to alight before the car was started forward. If the form in which the issues were presented to the jury constituted any variance or departure from the pleadings, the defendant was co-offender in this respect, and cannot complain after having had the benefit of the submission to the jury. This court has had occasion recently to reiterate that while common carriers are not insurers of the safety of passengers received for transportation, nor or they answerable for every casualty, regardless of how such accidents may be produced, but their liability is confined to such as can be connected with and attributed to some neglect of duty, yet the degree of care exacted of the carrier for the passenger's safety while he is getting off the vehicle is of the same lofty degree as that imposed while he is, in course of transit, the extraordinary care demanded from the carrier by law continuing until the contract of carriage is completed and terminated by delivery of the passenger at terminus of his journey uninjured, and that the contract of a passenger carrier toward its passengers requires the utmost care and diligence of very cautious persons and rendering them liable for even the slightest neglect. Tillman v. St. Louis Transit Co., 102 Mo.App. 553, 77 S.W. 320; Fillingham v. Id., 102 Mo.App. 573, 77 S.W. 314; Kroner v. Id., 107 Mo.App. 41, 80 S.W. 915. No contributory negligence was charged against plaintiff, and the degree of care defined by the wording of the fifth instruction for plaintiff is in substantial harmony with the legal principle discussed in the cases above mentioned and the authorities therein cited.

2. The contention of appellant that the rule of the highest degree of care is confined to that class of accidents, the occurrence of which creates a presumption of negligence and is not...