Morris v. Terminal Railroad Co.

• Decision Date: 21 June 1928
• Docket Number: No. 25936.,25936.
• Citation: 8 S.W.2d 11
• Court: Missouri Supreme Court
• Parties: ROBERT D. MORRIS v. UNION DEPOT BRIDGE & TERMINAL RAILROAD COMPANY, Appellant.

8 S.W.2d 11

ROBERT D. MORRIS v. UNION DEPOT BRIDGE & TERMINAL RAILROAD COMPANY, Appellant.

No. 25936.

Supreme Court of Missouri, Court en Banc.

June 21, 1928.

Appeal from Jackson Circuit Court. — Hon. Samuel A. Dew, Judge.

AFFIRMED (upon condition).

Paul C. Sprinkle, Kenneth McC. DeWeese and Cyrus Crane for appellant.

(1) Respondent's instruction number one is erroneous. The instruction is at variance with the petition as to the negligence. (a) The petition contains specific charges of negligence and also a general charge of negligence. Price v. St. Ry. Co., 220 Mo. 435. (b) The proof of the respondent was limited to the specific charges of negligence in the petition. McManamee v. Mo. Pac. Ry. Co., 135 Mo. 440; Chitty v. Ry. Co., 148 Mo. 64. (c) The negligence submitted in the respondent's instruction covering the whole case is general. Porter v. Ry. Co., 311 Mo. 66; Degonia v. Ry. Co., 224 Mo. 564; State ex rel. Coal & Coke Co. v. Ellison, 270 Mo. 645; Beave v. Transit Co., 212 Mo. 331. (d) The instruction submits a charge of negligence not contained in the petition. (e) The instruction assumes it to be negligence to operate a street car with the particular kind of an appliance the car had, on which the respondent was riding at the time of the accident. Allen v. Transit Co., 183 Mo. 411. (f) It wrongfully assumes permanent injury as to loss of "sexual powers." Colby v. Thompson. 207 S.W. 74; Waller v. Graff. 251 S.W. 734; Delvin v. City of St. Louis, 252 Mo. 203; Lebreeht v. United Rys. Co., 237 S.W. 114. (g) The phrase "or any of such results" is not limited by the instruction to the causes set out in the instruction. (2) The appellant's demurrer at the close of all the evidence should have been sustained. (3) The court erred in excluding evidence offered by appellant concerning the pregnancy of respondent's wife. Elliott v. Ry. Co., 157 Mo. App. 522: Schwanefeldt v. Ry. Co., 187 Mo. App. 588; Davis v. Ry. Co., 177 S.W. 1097; Wightman v. Benefit Society, 98 S.W. 829; State v. Robinson. 117 Mo. 664; Rearden v. Railroad Co., 215 Mo. 135; State v. Harris, 150 Mo. 56; Ranier v. Railroad Co., 271 S.W. 500; Dolan v. City of Moberly, 17 Mo. App. 436; Partello v. Ry. Co., 217 Mo. 645; Norris v. Ry. Co., 239 Mo. 695; Commonwealth v. Thompson, 159 Mass. 56; Littleton v. State, 29 So. 390. (4) The court erred in admitting testimony offered by respondent which respondent failed, under promise, to later make competent. Smith v. City of Sedalia, 182 Mo. 1; Root v. Ry. Co., 195 Mo. 348. (5) The court erred in admitting improper testimony as to respondent's injuries. Hutchinson v. Ry. Co., 288 S.W. 94; Magill v. Bank, 288 Mo. 489. (6) The remarks of counsel for respondent in his argument were prejudicial and erroneous. (7) The verdict of the jury is grossly excessive. Kuppe v. Transit Co., 122 Mo. App. 355; Wood v. Met. St. Ry. Co., 181 Mo. 433; Latson v. Transit Co., 192 Mo. 449: Chadwick v. Transit Co., 195 Mo. 517.

W.W. Holloway, John L. Gaylord and McAllister, Humphrey & Pew for respondent.

(1) Respondent's instruction numbered one is not erroneous. Barnes v. Elliott, 251 S.W. 488; Quinley v. Traction Co., 180 Mo. App. 287; Johnson v. St. Ry. Co., 177 Mo. App. 298; Williams v. Railroad, 114 Mo. App. 1; Riley v. City of Independence, 258 Mo. 671; Wagner v. Ry. Co., 209 Mo. App. 121; Fischbach v. Dunham, 203 S.W. 217; King v. Samuel. 93 Pac. 391. (2) Appellant's demurrer to the evidence was properly overruled. Canty v. Halpin, 294 Mo. 96; Kaemmerer v. Wells, 299 Mo. 249; Lindsay v. Shaner, 291 Mo. 308; Hutchinson v. Mo. Pac. Ry. Co., 288 S.W. 91; Eyler v. Light Co., 237 S.W. 545; King v. Mo. Pac. Ry. Co., 263 S.W. 828; Hahn v. United Rys. Co., 238 S.W. 529; Loehr v. Wells, 253 S.W. 461; Gilmore v. Powell, 256 S.W. 124; Price v. Met. St. Ry. Co., 220 Mo. 453; Roscoe v. Met. St. Ry. Co., 202 Mo. 576; Roques v. Butler County Ry. Co., 264 S.W. 474. (3) The court did not err in excluding evidence offered by the appellant concerning the pregnancy of the respondent's wife. Wood v. Met. St. Ry. Co., 181 Mo. 433; Boies v. McAllister, 12 Me. 308; Murray v. Ry. Co., 52 Pac. 596; State v. Reinheimer, 80 N.W. 669; Wharton on Evidence, sec. 437; Gray v. Brooklyn Ry. Co., 175 N.Y. 448: Ternetz v. Lime & Cement Co., 252 S.W. 65; Adams v. Ry. Co., 287 Mo. 535; Helfenstein v. Medart, 136 Mo. 595. (4) The court did not err in admitting testimony conditioned upon a later showing of competency. Gilchrist v. Rys. Co., 254 S.W. 161; Semple v. United Rys. Co., 152 Mo. App. 18; Hudson v. Rys. Co., 246 S.W. 578; Gieske v. Redemeyer, 224 S.W. 94; Bauer v. Smith, 74 Mo. App. 424; Monahan v. Clay & Coal Co., 58 Mo. App. 75. (5) The court did not err in admitting alleged improper testimony as to the respondent's injuries. Noland v. Morris & Co., 212 Mo. App. 1; Gieske v. Redemeyer, 224 S.W. 92; Ayres v. Theater Co., 210 S.W. 911; Gilchrist v. Rys. Co., 254 S.W. 161; State v. Privitt, 175 Mo. 207; Hicks v. Citizens Ry. Co., 124 Mo. 125; O'Neill v. Kansas City, 178 Mo. 91; Russ v. Wabash Ry. Co., 112 Mo. 45; State v. Baber, 74 Mo. 292. (6) The verdict of the jury is not excessive. L. & N. Ry. Co. v. Melton, 127 Ky. 276; Malloy v. Ry. Co., 173 Mo. 85; State v. McGinnis, 158 Mo. 105; Hanlon v. Mo. Pac. Ry. Co., 104 Mo. 381; Bond v. Ry. Co., 288 S.W. 777; Stein v. Rainey, 286 S.W. 53; Godfrey v. Light & Power Co., 299 Mo. 472; Myers v. Ry. Co., 296 Mo. 239; Meeker v. Electric Light & Power Co., 279 Mo. 574; Myers v. City of Independence, 189 S.W. 816; Stotler v. Ry. Co., 200 Mo. 107; Fullerton v. Fordyce, 144 Mo. 519; Valley v. Taxicab Co., 240 S.W. 218; Huggard v. Iowa Refining Co., 132 Iowa, 724; St. Louis Ry. Co. v. Webster, 99 Ark. 265; Otos v. Great Northern Ry. Co., 128 Minn. 283; Chicago & Eastern Ry. Co. v. Holland, 122 Ill. 461.

GANTT, J.

On January 23, 1919, the plaintiff, Robert D. Morris, was a passenger on defendant's car, from which he claims to have been thrown and injured. The case was submitted on assignments of negligence as follows: 1. Negligently opening the door of the car, causing plaintiff to be thrown through the open doorway. 4. Negligent operation of the car, causing it to collide with a car ahead. It is then alleged that plaintiff's injuries are the direct result of said negligence. Trial was had, verdict for $20,000, and defendant appealed.

I. Defendant assigns error upon the refusal of its instructions in the nature of a demurrer.

The evidence for plaintiff tended to show the defendant operated a street car system between North Kansas City, Missouri, across the bridge spanning the Missouri River, to Demurrer Kansas City, Missouri: that plaintiff boarded the to Evidence. car, paid the usual fare and became a passenger thereon; that the seats and standing room were occupied, plaintiff being the last to board the car; that he stood with his back immediately adjacent to the door, which was at the front of the right side and was the only means of entrance and exit; that the car was under the control of one man, who stands at the front on the left side and is separated from the passengers by an iron railing; that the brakes and the door of the car were operated by an air lever, revolving on a dial, which controlled the closing and opening of the door and the setting and releasing of the brakes; that the car was moving behind an interurban car, and when the highest point on the bridge was reached the motorman threw off the power and coasted down the incline at fifteen miles per hour; that while so coasting he engaged in conversation with one or two girls took down his pencil and trip sheet and was in the act of recording some figures when someone shouted "look out;" that the motorman looked up, became excited, dropped the pencil and trip sheet, grabbed the lever and suddenly threw it entirely around, which caused the door to open very quickly and at the same instant the cars collided; that by the impact plaintiff was hurled backward through the open doorway, striking the small of his back and head against a large steel beam of the bridge; that the car was stopped by the collision, and plaintiff either got back on or was helped on, and after a brief interval, the car proceeded to the terminus; that plaintiff left the car and walked to 5th and Wyandotte, where he was assisted into a jitney bound for Kansas City, Kansas, where he resided; that as a result of his injuries he became afflicted with traumatic neurasthenia or nervous exhaustion, resulting in melancholia, headaches, sleeplessness, loss of weight, loss of memory and loss of sexual power.

The evidence for the defendant tended to show that while there was a rear end collision the door was not opened by the motorman or anyone else; that it remained closed during the time the car was on the bridge, and that plaintiff neither fell through nor was thrown through the open doorway, but remained on the car until it reached its terminus.

Clearly, under the evidence for plaintiff a submissible case was made under assignments 1 and 4. The contention is overruled.

II. Defendant assigns error upon the giving of plaintiff's Instruction 1. This calls for a consideration of the assignments of negligence in the petition, as follows:

"1... . And while defendant's car was moving at a much greater rate of speed than was the said interurban car, said defendant's car suddenly crashed into and collided Variance. with the rear end of said interurban car, at which time or immediately prior thereto, and without the knowledge of plaintiff, and without any warning to him whatever, the motorman on said defendant's car negligently opened said door, causing plaintiff, when said collision occurred, to be hurled out of said car through the doorway thereof, striking his head, shoulders, back and legs violently and with great force against a large steel or metal post, brace or girder of said bridge, then and there injuring plaintiff in a manner hereinafter set out.

"2. That defendant's...