McNamara v. St. Louis Transit Company
| Decision Date | 12 April 1904 |
| Citation | 80 S.W. 303,106 Mo.App. 349 |
| Parties | McNAMARA, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jefferson Circuit Court.--Hon. Frank R. Dearing, Judge.
Judgment affirmed.
Sears Lehmann with George W. Easley for appellant.
(1) The trial court erred in not setting aside the verdict on the grounds set out in the motion for new trial. Spiro v Transit Co., 76 S.W. 684; Kennedy v. Transit Co., 103 Mo. 1; Nugent v. Milling Co., 131 Mo 241. (2) The court erred in giving to the jury at the request of the plaintiff, the following instruction: "If the jury find for the plaintiff, they may, in estimating her damages, take into consideration all the facts and circumstances as detailed in evidence--her bodily injuries if any, and whether or not they are permanent in their nature, and allow her therefor such sum as they may believe from the evidence she has been damaged; not exceeding ten thousand dollars." This instruction is erroneous because it does not define to the jury the elements of damage or give to them the law on the measure of damages, but gives to them a roving commission to assess, under all evidence and circumstances, whatever damages they might see fit. Wilburn v. Railroad, 36 Mo.App. 203; Flynt v. Railroad, 38 Mo.App. 94; Camp v. Railroad, 94 Mo.App. 273.
John P. Leahy and Kleinschmidt & Reppy for respondent.
(1) If the verdict in view of all the evidence is not so out of line with reason and justice as to shock the conscience, or to satisfy the unbiased mind that it was not the result of impartial and unprejudiced deliberation, the appellate court will not reverse it as being excessive. Perrette v. Kansas City, 162 Mo. 239. (2) The instruction on the measure of damages contains all the elements of damage except physical pain and mental anguish which may be assumed in the instruction where the injuries are of such a nature that pain and anguish necessarily follow. Dunn v. Railway, 81 Mo.App. 42; Kelly v. Stewart, 93 Mo.App. 592; Fullerton v. Fordyce, 144 Mo. 532.
In this action plaintiff seeks to recover for injuries alleged to have been sustained in the afternoon of November 17, 1902; her petition charges and the testimony in her behalf tended to show, that she boarded a south-bound car on Broadway at southeast corner of Lucas avenue, on her way to where she lived in southern part of the city of St. Louis; as she entered such car, as a passenger, and was proceeding to take a seat, but before seating herself, in response to the conductor's signal, the car was started with a sudden severe jerk and an unusual and violent jolt which precipitated her to the floor, throwing her against a seat. The injurious consequences of the fall, she deposed, had kept her in bed for three months and more, and caused her pain continuously to time of trial in September following.
The testimony further revealed that plaintiff was thirty-five years of age, unable to read or write and prior to the occurrence had performed the household duties of her family, composed of two children and her husband. That plaintiff fell as she entered defendant's car was not controverted, but the evidence of numerous witnesses was to the effect, that a fall from the cause assigned was impossible, as the day being rainy and the tracks wet, a car as a physical fact could not be started with a jolt or jar sufficient to throw any one down as the wheels in moving would slip along the wet rails.
The court appeared to have instructed to the full extent asked by the opposing parties, and the jury returned a verdict for one thousand dollars. Appellant interposes as reasons rendering it imperative that the judgment should be reversed, that the verdict is not supported by, but contravenes the weight of the trial evidence, and is so excessive as to be manifestly the result of passion and prejudice on the part of the jury. It is maintained that the description of the event by plaintiff is conclusively...
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