Pilkerton v. Miller

• Decision Date: 22 April 1926
• Docket Number: No. 3941.,3941.
• Citation: 283 S.W. 455
• Parties: PILKERTON v. MILLER.
• Court: Missouri Court of Appeals

283 S.W. 455

PILKERTON v. MILLER.

No. 3941.

Springfield Court of Appeals. Missouri.

April 22, 1926.

Rehearing Denied May 18, 1926.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

Action by John Pilkerton against D. E. Miller. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

James E. Sater, of Monett, and Haywood Scott, of Joplin, for appellant.

D. S. Mayhew, of Monett, and Ray Bond, of Joplin, for respondent.

COX, P. J.

Action for personal injuries. This is the second appeal in this case. Plaintiff recovered in the former trial, and a motion for new trial filed by defendant was sustained. Plaintiff then appealed to this court, and the judgment of the court in sustaining the motion for new trial was affirmed. Pilkerton v. Miller (Mo. App.) 278 S. W. 84. On another trial plaintiff again recovered, and defendant appealed.

Plaintiff's cause of action is based on the following allegations of fact: That he was riding in a hack going northward on the east side of Fourth street, in the city of Monett, and driving his horse slowly. Defendant was driving an automobile southward on the same street, and suddenly turned his car to the left, and negligently and carelessly ran said automobile diagonally across the street, upon and against the plaintiff's hack, thereby throwing plaintiff out and upon the concrete pavement, which caused the injury of which complaint is made.

The answer was a general denial and a plea of contributory negligence.

Without reviewing the testimony, or discussing the instructions at length, we merely say that the case was well tried, except in one particular. In instruction No. 2 for plaintiff on the measure of damages occurs the following language:

"And, if you further find and believe from the evidence that plaintiff, on account of such injuries, if any, was compelled to partially lose his means of livelihood, or will in the future be compelled to partially lose his means of livelihood, you may take this into consideration mid allow him such an amount as you may find and believe from the evidence that he is entitled to."

All reference to loss of means of livelihood should have been omitted, and, in lieu thereof, reduction in his earning capacity should have been inserted. The jury in fixing the amount of damage should have been restricted to compensation for the loss of earning capacity, and not be allowed to fix the amount at any sum to which they might think plaintiff should be entitled to recover. The rule by which to determine the amount of damage is compensation for the loss as shown by the evidence, and not the opinion of the jury as to the amount to which they might think the plaintiff is entitled. In view of the character of the evidence as to the extent of the injury and the amount of the verdict, we are inclined to the view that the form of this instruction, standing alone, would not constitute reversible error, but, upon another trial, its form should be corrected to conform to the rule of compensation in fixing the amount of damages. "

We think reversible error was committed in the voir...