Moore v. Southwest Missouri Electric Railway Company
| Decision Date | 08 June 1903 |
| Citation | 75 S.W. 176,100 Mo.App. 665 |
| Parties | A. B. MOORE, Respondent, v. SOUTHWEST MISSOURI ELECTRIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.
Judgment affirmed.
McReynolds & Halliburton for appellant.
(1) The court erred in overruling defendant's objection to plaintiff's testifying as to amount paid Ragsdale, the nurse. Because the petition does not allege any payment of any specific amount, and it being a special consequential damage must be alleged before it can be proven. O'Leary v. Rowan, 31 Mo. 117; Sedgwick on Measure of Damages (8 Ed.), secs. 1261, 1270. (2) The defendant was not required to check speed until he saw that plaintiff was in imminent danger. The evidence is beyond question that the motorman rang his bell far enough away to give plaintiff ample warning. And under the evidence the motorman was not guilty of any negligence. Booth on Street Railways, sec. 298; Molineux v. Railway, 81 Mo.App 25; Bunyan v. Railway, 127 Mo. 17; Stocks v Transit Co., 71 S.W. 730. (3) The evidence shows that defendant's motorman could not possibly have stopped his car in time to have avoided the accident after discovering plaintiff's peril, and if so plaintiff is not entitled to recover. Molineux v. Railway, 81 Mo.App. 30. (4) It is wellsettled law in this State that the mere fact that a person is seen riding or driving along a railroad track, that all that is required of the company is to give warning of the approach of its cars; and the presumption is that the person will get out of the way, and the company is under no obligation to stop its car until such time as it sees that the person is in peril and has not heard or heeded the warning. Culbertson v. Railway, 140 Mo. 35; Bunyan v. Railway, 127 Mo. 17; Stocks v. St Louis Transit Co., 71 S.W. 730. (5) There is no substantial evidence of negligence on the part of defendant's employees. Culbertson v. Railway, 140 Mo. 60. (6) Plaintiff's instructions No. 1 and No. 3 are erroneous as they permit plaintiff to recover though plaintiff made no effort to care for himself and puts the burden upon defendant to take care of him. Culbertson v. Railway, 140 Mo. 60; Tanner v. Railway, 161 Mo. 497; Sharp v. Railway, 161 Mo. 214; Davis v. Railway, 159 Mo. 1; Maxey v. Railway, 68 S.W. 1063.
Thomas & Hackney for respondent.
(1) No error was committed in the trial court in permitting plaintiff to testify to the amount paid for a nurse. Gurley v. Railroad, 122 Mo. 141; Smith v. Railway, 119 Mo. 246. (2) Defendant can not complain of the third instruction given for the plaintiff. Oates v. Railway, 68 S.W. 906; Morgan v. Railway, 159 Mo. 262; Hutchinson v. Railway, 88 Mo.App. 376; Klockenbrink v. Railway, 81 Mo.App. 351. (3) The instructions given by the court fully define the duties of the plaintiff and likewise the duties of the defendant in their respective situations. (4) The ninth ground assigned in the defendant's motion for new trial averred that the amount of the verdict was arrived at by each of the twelve jurors voting for a specified amount and then adding such amounts together and dividing the total amount thus obtained by twelve, and taking the amount thus obtained for their verdict. This was not supported by the proof. Wiley v. Belfast, 61 Mo. 569.
The defendant is a street car company operating an electric street railway in the city of Carthage. Plaintiff suffered personal injuries through a collision of one of the cars with his buggy in which he was driving along the street. The judgment in the trial court was for the plaintiff.
Plaintiff was driving along the street in the daytime, going ahead of the car and in the same direction. He was driving so close to the track that the car could not pass without striking his buggy and it did strike it at the hind wheel with sufficient force to tilt it up and turn the plaintiff out. There was evidence tending to support the charge that defendant's motorman was negligent in not avoiding the collision. And so there was evidence tending to support the countercharge that plaintiff was careless and negligent. To this charge and countercharge the jury has responded in favor of the plaintiff and we can not interfere, unless there has been some error in the trial.
It is first objected that evidence of the amount paid out by plaintiff as nurse hire was improperly admitted under the allegation of the petition. It being insisted that as no specific sum was claimed on that account, none should be recovered. The petition alleged:
"Plaintiff's said injuries are of a permanent character and continue to cause him suffering and pain, and will continue to cause him suffering during his natural life, and that he has, and will hereafter be permanently incapacitated from pursuing his ordinary employment; that on account of said injuries he was compelled to incur, and did incur, great expense for medical attendance, and was compelled to hire nurses to wait upon him and care for him in his illness, and while he was confined to his bed and to his room, to the plaintiff's injury and damage in the sum of two thousand dollars, for which sum, together with costs, plaintiff prays judgment." This was a claim for nurse hire and that such hire, together with the injury, made up the damage. We think that under the ruling of the Supreme Court the evidence was properly received. Smith v. Railway, 119 Mo. 246; Gurley v. Railway, 122 Mo. 141.
Instructions were given for either side which very fully covered the theory of each, and we think that when all are considered, no substantial criticism can be justly made of them. The first for plaintiff submits that if plaintiff was driving along in the same direction with the car, which was coming behind him and so close to the track that the car could not pass without collision, and that the motorman saw plaintiff in said situation, or might have seen him if...
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