O'Neil v. Pullman Co.
| Decision Date | 01 April 1924 |
| Citation | 260 S.W. 798,214 Mo.App. 283 |
| Parties | URSULA M. O'NEIL, Respondent, v. THE PULLMAN COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court, City of St. Louis.--Hon. Benjamin J Klene, Judge
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Lehmann & Lehmann and Thos. R. Reyburn for appellant.
(1) Proximate cause is an act which sets in motion a train of events that in their natural sequence might and ought to be expected to produce an injury as undisturbed by any independent intervening cause. The causal connection between plaintiff's injury and defendant's alleged wrong cannot be based on the merest conjecture and speculation. Smith v. Pullman Co. is exactly in point. Amelia Smith v Pullman Co., 138 Mo.App. 238; Powell v. Walker, 185 S.W. 532; State ex rel. Lusk v. Ellison, 196 S.W. 1088; Majors v. Ozark Power & Water Co., 222 S.W. 501; Davis v. Hospital, 196 S.W. 104; Washburn v. Gas Co., 214 S.W. 410; Strayer v Quincy, Omaha & Kansas City Ry. Co., 170 Mo.App. 514; Cole v. Loan Society, 124 F. 113; Fitch v. Western Union, 150 Mo.App. 149; Howell v. St. Louis & Hannibal Ry. Co., 171 Mo.App. 92; Terry v. Hogan, 181 Mo.App. 48; Benson v. Central P. R. Co., 98 Cal. 45; Sira v. Wabash R. R. Co., 115 Mo. 127; Central R. R. Co. v. Pierce, 106 Ga. 176; Schaff v. Boatright, 243 S.W. 1116; Indianapolis B. & W. R. Co. v. Binney, 71 Ill. 391; St. Louis Southwestern R. R. Co. v. Thomas, 27 S.W. 419. (2) The plaintiff was damaged to the extent of the cost of a ticket which was not sued for. The first instruction misled the jury into basing a verdict on such damage. (3) In the absence of malice, there can be no recovery for inconvenience, pain and suffering unaccompanied by physical injury. The instruction on the measure of damages omitted the last element. Smith v. Pullman Co., 138 Mo.App. 238; Crutcher v. Railway, 132 Mo.App. 311.
Taylor R. Young and Marsalek & Stahlhuth for respondent.
(1) The evidence plainly convicted defendant of a breach of its legal duty to plaintiff in this, that defendant unlawfully and wrongfully failed and refused to furnish plaintiff the accommodations it had agreed to provide her. Defendant thereupon became liable to plaintiff for the damages she suffered as a natural and probable consequence of defendant's wrong. The recoverable damages included not only the physical discomfort, inconvenience and hardship imposed upon her, but also mental distress caused thereby. Ferguson v. Railways Company, 177 S.W. 616; Dalzell v. Hotel Co., 193 Mo.App. 379; Davis v. Lusk, 190 S.W. 362; Hartridge v. Railway, 196 S.W. 59; Dye v. Railroad, 135 Mo.App. 254-5; Braun v. Webb, 31 Misc. 794, affid. 32 Misc. 243; Aplington v. Pullman Co., 110 A.D. 250; Pullman Co. v. Hocker, 41 Tex. Civ. App. 607, 93 S.W. 1009. (2) In addition to the above, plaintiff was entitled to recover for the injury to her back, which was a proximate result of defendant's wrong. (a) The liability of a wrongdoer for the result of his misconduct does not depend upon his ability to foresee the precise result complained of, but he is liable for any result which, after the injury is complete, appears to be a natural and probable consequence of the wrongful act or omission. Gott v. Railway, 222 S.W. 827; Powell v. Railroad, 229 Mo. 283; Schafer v. Sieben, 233 S.W. 419; Estes v. Railroad, 110 Mo.App. 725; Benton v. City, 248 Mo. 98; Dean v. Railroad, 199 Mo. 411; McDonald v. Railroad, 219 Mo. 491; Graney v. Railroad, 140 Mo. 89, 98. (b) A carrier who breaches the contract of transportation becomes liable to the passenger for damages suffered from exposure, or otherwise, as a result of the breach. Dye v. Railroad, 135 Mo.App. 254-55; Smith v. Pullman Co., 138 Mo.App. 238; Davis v. Lusk, 190 S.W. 362; Drew v. Railroad, 129 Mo.App. 465; Green v. Railroad, 121 Mo.App. 720; Adams v. Railroad, 100 Mo. 555; Winkler v. Railroad, 21 Mo.App. 99; Hughes v. Pullman Co., 74 F. 499; Pullman Co. v. Meyer (Ala.), 70 So. 763; Case v. Railroad, 191 Pa. 450; Railroad v. Terry, 62 Tex. 380; Railroad v. Hartnett (Tex.), 34 S.W. 1057; Railroad v. Kieth, 11 Ind.App. 290; Railroad v. Lucas, 119 Ind. 583; 1 Thompson on Negligence, sec. 154, p. 149; 10 Corpus Juris, 838. (3) Plaintiff's instructions Nos. 1 and 2 correctly declared the law. (a) A finding by the jury of a bodily injury to plaintiff was not a prerequisite to their finding any damages in her favor. Authorities under Point 1, supra. (b) It was the defendant's duty, if it believed the instruction on the measure of damages to be too general, to request an instruction on the subject, and, having failed to do so, defendant is in no position to complain. Winston v. Lusk, 186 Mo.App. 390; Barth v. Railway, 142 Mo. 535, 555; Browning v. Railroad, 124 Mo. 55. (4) The facts regarding plaintiff's injuries were pleaded in detail in the petition, but no motion was made to strike out any part thereof. The evidence on this subject went in without objection or exception by defendant. Defendant is now estopped to urge that the jury could not find that defendant's wrong was a proximate cause of the bodily injury sustained by her. Sec. 1512, R. S. 1919; Bragg v. Street Ry. Co., 192 Mo. 331.
This is an action to recover damages which plaintiff alleges she suffered in consequence of defendant's breach of the terms of the contract to permit her to occupy a berth on its sleeping car. The trial resulted in a verdict and judgment for two thousand dollars, and the cause is here on the appeal of defendant from that judgment.
It appears, from the evidence introduced by plaintiff, that an agent of the Wabash Railway Company, at St. Louis, issued to plaintiff a through railroad ticket from St. Louis, Missouri, to Winfield, Kansas, via the Wabash to Kansas City and via the Atchison, Topeka & Santa Fe to Winfield. Said agent wired to Kansas City for Pullman accommodations for plaintiff from Kansas City, Missouri, to Winfield, Kansas. The reply to this wire called for "lower berth 6, car 4," and on this wire he also issued to plaintiff, as agent for the Pullman Company, a Pullman sleeping car ticket, which called for lower 6, in Pullman car 4, leaving Kansas City at 10:15, p. m., September 30, 1920. This Pullman ticket did not specify the road over which the passenger was to take passage, but there was only one train leaving Kansas City for Winfield that night at 10:15, p. m. The defendant company, Atchison, Topeka & Santa Fe Railway Company and the Wabash Railway Company are all distinct corporations. The plaintiff and her husband arrived in Kansas City on the Wabash train at 9:30, p. m., on September 20th. Plaintiff's husband expected to stop over in Kansas City a few days and join his wife later at Winfield. They sent all their valises with their clothing to a hotel in Kansas City, except a small valise retained by plaintiff. After waiting at the station until the gate was opened, to permit them to reach the 10:15, p. m., Santa Fe train for Winfield, Kansas, they went to defendant's conductor, in charge of the Pullman car attached to said train, and presented the Pullman ticket, and also the railroad ticket, to him. After examining the Pullman ticket, the conductor said to plaintiff, "you can't ride on this car; this ticket calls for the car previous to this, the train previous to this; there is no number four on this car." The conductor further told plaintiff that the train went to Winfield, Kansas, and that she could ride in the day coach or the chair car. Not wishing to disappoint the people who were to meet her the next morning at Winfield, Kansas, plaintiff did not accompany her husband to the hotel, but boarded the chair car and continued her journey to Winfield.
Regarding the damages which plaintiff alleges she suffered on account of defendant's refusal to permit her to enter said sleeping car, she testified, substantially, that the weather was very warm that afternoon; that she had only a little neck piece with her and was not prepared to travel in any other car but a sleeper; that en route to Winfield, everything was going along nicely until about two o'clock the next morning; that she did not go to sleep at all from two to four o'clock; that it began to get very cold and that she sneezed and tried to suppress it, for fear of waking the other passengers; that she thought she was taking a terrible cold and that when she tried to suppress the sneezing she felt a crick in her back and became alarmed and thought possibly it was lung trouble; that she stood up for a minute and felt better; that she sat down again and from that time on felt a pinching in her back; that she was not sufficiently clothed and that this caused her to sneeze. She further testified that when she arrived at Winfield, about nine o'clock, the following morning, she was cold and her back hurt her so that she could not lie down; that she was under the care of Dr. Pugh from September until February or March of the following year; that she also consulted Dr. Bailey, an osteopath, who put a displaced vertebra into place, but that there still was some swelling and that she suffered severe pain.
On cross-examination she testified that the chair car was not heated; that the windows were all open and every body had wraps but herself; that when it got colder every body closed the windows but that she got a draft before the windows were closed; that she did not request other passengers to close their windows because they were well wrapped and she thought they preferred to have the windows open; that she was in perfect health when she boarded the chair car and nothing at all had been the matter with her back; that all her injuries were caused by a...
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