Nelson v. United Rys. Co. of St. Louis

• Decision Date: 05 July 1913
• Citation: 158 S.W. 446
• Parties: NELSON v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

158 S.W. 446

NELSON v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

July 5, 1913.

Rehearing Denied July 16, 1913.

1. PLEADING (§ 427) — WAIVER OF OBJECTIONS — ISSUES.

Where a petition for damages for personal injuries makes no claim of damage for loss of time, but the defendant permitted evidence concerning that to be admitted, the objection that an instruction allowing the plaintiff to recover for loss of time is erroneous under the petition is waived, and the variance will be regarded as immaterial under the statute.

2. DAMAGES (§ 216) — LOSS OF EARNINGS — IMPAIRMENT OF EARNING CAPACITY — INSTRUCTIONS.

Where there was evidence as to loss of time and diminution of the earning power of one employed as a common laborer, but no testimony to what he had been earning prior to the accident, it was not improper to charge that loss of time and diminution of earning capacity are part of the measure of damages, since the general wages of a common laborer are matters of common knowledge, and plaintiff was entitled to at least nominal damages for those items.

3. TRIAL (§ 255) — INSTRUCTION — NECESSITY FOR REQUEST.

Where a plaintiff is entitled to nominal damages, at least, for loss of time and diminished earning capacity, it is not reversible error not to limit recovery to a nominal amount, in the absence of a request for such instruction.

4. DAMAGES (§ 132) — EXCESSIVE DAMAGES — PERMANENT INJURY TO SHOULDER.

A verdict for $4,200 damages is not excessive, where a common laborer suffered a broken rib and severe and permanent injury to the shoulder, which kept him from work for seven weeks and thereafter prevented his doing certain work.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Edward W. Nelson against the United Railways Company of St. Louis. Judgment for the plaintiff, and defendant appeals. Affirmed.

Boyle & Priest, T. E. Francis and Elmer C. Adkins, all of St. Louis, for appellant. Johnson, Rutledge & Lashly, Geo. E. Smith and Glendy B. Arnold, all of St. Louis, for respondent.

NORTONI, J.

This is a suit for damages accrued on the grounds of negligence. Plaintiff recovered, and defendant prosecutes the appeal.

Three points are made for a reversal of the judgment: First, that the court authorized a recovery as for the loss of time when no averment touching that matter appears in the petition; and, second, without direct proof of the value of such loss, that is earning capacity; and, third, because the verdict is excessive.

It appears that plaintiff was injured through the negligence of defendant in permitting its street car to run upon him in a public thoroughfare in St. Louis. As a result of the collision, one of plaintiff's ribs was broken and severe and permanent injuries were inflicted upon his shoulder.

Plaintiff's instruction on the measure of damages is as follows: "The court instructs you that, if you find for the plaintiff, you should, in estimating his damages, consider his physical condition before and since receiving the injuries for which he sues (as shown by the evidence), his loss of time, if any, and his physical and mental anguish, if any suffered by him on account of his injuries at the time of and since such injuries (as shown by the evidence), and such damages, if any, as you may, from the evidence, find reasonably certain he will suffer in the future by reason of his injuries, and you will assess his damages at such sum as will, in your judgment, under the evidence, reasonably compensate him for such injuries, not exceeding the sum of $10,000." (The italics are our own and are employed to the end of inviting attention to those words later in the opinion.)

After describing the injuries, the petition says they are permanent, and avers, too, "that plaintiff was confined to his bed for a long time" on account of such injuries. But there is no direct averment that plaintiff lost any time on account of them, and no claim is laid for compensation on the score of past lost time. There is, however, an express averment in the petition that plaintiff's future earning capacity has been impaired so as to prevent him from earning a livelihood in the future. Under this latter averment, it was certainly competent, and so much is conceded, for plaintiff to prove and recover on account of future loss of earnings. But it is said the court erred in authorizing a recovery as for, to quote from the instruction, "his loss of time," for it would seem such recovery included compensation for loss of time in the past, which was not claimed in the petition. Touching this matter and that phase of it concerning the omitted averment in the petition, it may be said that defendant, without objection on its part, sat by and permitted plaintiff to introduce an...