Porter v. St. Joseph Railway, Light, Heat & Power Company

• Citation: 277 S.W. 913,311 Mo. 66
• Decision Date: 25 November 1925
• Docket Number: 24265
• Parties: ELSYE M. PORTER v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY, Appellant
• Court: United States State Supreme Court of Missouri

277 S.W. 913

311 Mo. 66

ELSYE M. PORTER v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY, Appellant

No. 24265

Supreme Court of Missouri

November 25, 1925

Appeal from Buchanan Circuit Court; Hon. L. A. Vories Judge.

Affirmed.

Robert A. Brown and Richard L. Douglas for appellant.

(1) The court erred in sustaining plaintiff's motion for a new trial, on account of instruction numbered 8, given in behalf of the defendant. (a) The allegations of plaintiff's petition constitute allegations of specific negligence. Pointer v. Mountain Ry. Const. Co., 269 Mo. 114; Davidson v. Transit Co., 211 Mo. 361; Kean v Piano Co., 206 Mo.App. 173; Hennekes v. Beetz, 217 S.W. 533; Motsch v. Standard Oil Co., 223 S.W 677; Roscoe v. Met. St. Ry. Co., 202 Mo. 587; McGrath v. Transit Co., 197 Mo. 97; Orcutt v. Century Bldg., 201 Mo. 424; Price v. Met. St. Ry. Co., 220 Mo. 453. (b) Plaintiff tried her case upon the theory that specific negligence had been alleged, and that the burden rested upon her to prove it. Plaintiff's instructions submitted the case upon the theory that specific negligence had been alleged, and she assumed the burden of proof. Presumptions were not considered in the introduction of evidence, nor in the instructions asked by plaintiff and given by the court. Having tried her case upon the theory that specific negligence had been pleaded, and that the burden was upon her to prove it, plaintiff will not now be permitted to take advantage of any invited error, if such error there was. McAnany v. Shipley, 189 Mo.App. 399; State ex rel. Am. Packing Co. v. Reynolds, 230 S.W. 643; Scott v. K. C. Rys. Co., 229 S.W. 178; Wallower v. Webb City, 171 Mo.App. 226; Huss v. Bakery Co., 210 Mo. 50; Williams v. C., B. & Q. Ry. Co., 155 S.W. 67; Keele v. Railroad, 258 Mo. 75; White v. Railroad, 250 Mo. 487; Walker v. Railroad, 193 Mo. 483; Jones v. Publishing Co., 240 Mo. 209; Sawyer v. Walker, 204 Mo. 164; Wilcox v. Court of Honor, 134 Mo.App. 556; Long v. Coal Co., 233 Mo. 731; Fitzpatrick v. Webber, 168 Mo. 573. (c) Even should it be conceded that plaintiff did not in her petition allege specific negligence, and that in the trial of the case she did not attempt to prove such negligence and not assume the burden of proof, that the doctrine of res ipsa loquitur could have been invoked, defendant's instruction numbered eight nevertheless correctly declared the law. A mass of testimony was introduced during the trial of the case which showed the exact nature of the accident and all the causes leading up to the same. When such testimony was introduced and the facts were thereby disclosed, all presumptions, if any had existed, immediately vanished, and the burden of proof remained on the plaintiff throughout the case to prove negligence upon the part of the defendant. Stack v. General Packing Co., 283 Mo. 420; Downs v. Horton, 287 Mo. 432; Guthrie v. Holmes, 272 Mo. 215; Sowders v. Railroad, 127 Mo.App. 119; Hurck v. Mo. Pac. Ry. Co., 252 Mo. 39; Kilroy v. Crane Agency Co., 203 Mo.App. 302; Mockowik v. Railroad, 196 Mo. 571; Glassman v. Harry, 182 Mo.App. 308; Taylor v. Tel. Co., 181 Mo.App. 288; Berger v. Storage Co., 136 Mo.App. 42; Wigmore on Evidence, sec. 2487. (2) The court erred in sustaining plaintiff's motion for a new trial, on account of alleged error in the giving of defendant's instruction numbered seven. Defendant's instruction told the jury that plaintiff could not recover on the ground of nervousness alone, unless the jury should believe from the evidence that she had sustained some physical injury. Crutcher v. Railroad, 132 Mo.App. 318; McCardle v. Peck D. G. Co., 191 Mo.App. 264; Strange v. Mo. Pac. Ry. Co., 61 Mo.App. 586; Morris v. Lackawanna Railroad Co., 77 A. 445; Miller v. Railroad Co., 85 N.E. 499; St. Louis Iron Mt. Ry. Co. v. Bragg, 64 S.W. 226; Ward v. Railroad Co., 47 A. (N. J.) 561.

Duvall & Boyd and W. B. Norris for respondent.

(1) The allegation in the petition "that the defendant so negligently maintained and operated its street car and street railway on which plaintiff was a passenger as to cause, permit and suffer said car to collide with a large and heavy fire wagon, by reason and as a result thereof plaintiff was thrown with great force and violence against the street car and thereby injured," was a general allegation of negligence. Elliott v. Ry. Co., 236 S.W. 17; Price v. Met. St. Ry. Co., 220 Mo. 435; Provance v. Railroad Co., 186 S.W. 955; McDonald v. Met. St. Ry. Co., 219 Mo. 468; Bergfeld v. Rys. Co., 285 Mo. 654; Grimm v. Globe Printing Co., 232 S.W. 676; Kean v. Smith-Reis Piano Co., 206 Mo.App. 170. (2) Because plaintiff in her case in chief put in proof of some specific acts of negligence she was not precluded from the presumption of negligence to which she was entitled, though in so doing plaintiff assumed an unnecessary burden in making a primafacie case. Price v. Met. Ry. Co., 220 Mo. 435; Kilroy v. Ry. Co., 195 S.W. 525; Loftus v. Railroad Co., 220 Mo. 470; Stouffer v. Met. St. Ry. Co., 243 Mo. 305; Kinchlow v. Ry. Co., 264 S.W. 416. (3) Instruction 8 given by the lower court in behalf of defendant was error, and the lower court so held, and therefore granted the new trial, from which action the appeal was taken in this case. The instruction should have been limited so as to have told the jury that the burden was upon the plaintiff to prove that she was a passenger upon defendant's car and that the car in which she was riding collided with the fire truck, and that as the result of the collision she was injured, and that this burden remained upon her throughout the trial of the case. The instruction, however, did not stop there, but placed the burden upon the plaintiff to prove the negligence of the defendant. Olsen v. Citizens Ry. Co., 152 Mo. 426; Simpson v. Railroad Co., 192 S.W. 739; Stover v. Harvey, 204 S.W. 587; Morgan v. Ry. Co., 232 S.W. 111.

OPINION

Walker, J.

This is an action for damages for personal injuries sustained by the respondent while riding in one of appellant's street cars in the city of St. Joseph, in January, 1922. Upon a trial to a jury there was a verdict for the appellant. Respondent's motion for a new trial was sustained on the ground that the court had erred in giving instructions numbered seven and eight at the request of the appellant.

These instructions are as follows:

"7. The court instructs you that even if you should find and believe from the evidence that plaintiff was made nervous solely by reason of the collision described in evidence, or that some previous nervous condition had been aggravated by reason thereof, yet, if you further find and believe from the evidence that she sustained no physical injury of any kind, then under the law it is your duty to find your verdict in favor of the defendant.

"8. The court instructs you that the burden rests upon the plaintiff throughout the entire case to prove by a preponderance or greater weight of all the credible evidence to your reasonable satisfaction, that the collision described in evidence was caused or contributed to by the negligence of defendant's motorman; and likewise such burden rests upon the plaintiff to prove each and every fact necessary to authorize a finding in plaintiff's favor, under the instructions of the court; and unless plaintiff has produced such preponderance of the testimony you will find your verdict in favor of the defendant."

I. The purport, if not the tenor of instruction numbered seven, has not infrequently been considered, not only by this court, but also by the court of appeals. The latest ruling of this court upon the doctrine of non-liability, announced in the instruction, is in Perkins v. Wilcox, 294 Mo. 700, in which it is held generally that in the absence of any physical injuries inflicted by the alleged wrongful acts of the defendant the plaintiff is not entitled to recover. A like doctrine is announced with more emphasis in McCardle v. Peck Dry Goods Co., 271 Mo. 111. The instruction there under review was as follows:

"8. You are instructed that the plaintiff cannot recover for any fright, terror, alarm, anxiety or distress of mind caused by or resulting from the descent of defendant's elevator if these were unaccompanied by some physical injury.

"You are further instructed that if you believe from the evidence that plaintiff's present condition is the result of fright or scare only, then plaintiff cannot recover in this case."

In ruling upon this instruction the court said (p. 120):

"The first paragraph of the eighth instruction for the defendant which told the jury in effect, that defendant is not responsible for the mental suffering of plaintiff unless it is accompanied by physical injury, is correct. The rule in this State was laid down in Trigg v. Railroad, 74 Mo. 147, thus: 'The general rule is that pain of mind, when connected with bodily injury, is the subject of damages; but it must be so connected in order to be included in the estimate, unless the injury is accompanied by circumstances of malice or inhumanity.'" Citing Supreme Court and courts of appeals cases.

The reasoning of the Supreme Court of Massachusetts, cited with approval in the McCardle case (p. 121), is so apposite that a quotation from the relevant portion of same is not inappropriate:

"We remain satisfied with the rule that there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and if this rule is to stand, we think it should also be held that there can be no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is no injury to the person from without. The logical vindication of this rule is, that it is unreasonable to hold persons who are merely negligent...