Price v. Metropolitan St. Ry. Co.

• Decision Date: 22 May 1909
• Parties: PRICE v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

119 S.W. 932

220 Mo. 435

PRICE v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri.

May 22, 1909.

1. CARRIERS (§ 318)—INJURY TO PASSENGER— PRIMA FACIE CASE.

In an action against a street railroad company for injuries to a passenger in a collision between two cable trains, evidence for plaintiff held to establish a prima facie case.

2. CARRIERS (§ 316)—INJURY TO PASSENGER— CHARGE OF GENERAL NEGLIGENCE IN PETITION —APPLICATION OF DOCTRINE OF RES IPSA LOQUITUR.

In an action against a street railroad company for injuries to a passenger in a collision between cable trains, the only charge of negligence in the petition was that "the defendant carelessly and negligently caused and permitted the train on which plaintiff was riding as a passenger to come in violent collision with another train of defendant's, said other train being on said Twelfth street and on said incline as aforesaid, that said collision was occasioned without any fault on the part of the plaintiff, but by reason of the negligence as aforesaid of the defendant." Held, to be a charge of general negligence, so as to render applicable the doctrine of res ipsa loquitur.

3. CARRIERS (§ 316)—INJURY TO PASSENGER— PRESUMPTIONS AND BURDEN OF PROOF—PRIMA FACIE CASE.

Because plaintiff suing a street railroad company for injuries in a collision on her case in chief put in proof of some specific acts of negligence, she was not thereby precluded from the presumption of negligence to which she was entitled under her petition, which charged negligence in general terms and not specifically, though in so doing she assumed an unnecessary burden in making out a prima facie case.

4. NEGLIGENCE (§ 121)—PLEADING GENERAL NEGLIGENCE—APPLICATION OF DOCTRINE OF RES IPSA LOQUITUR.

If negligence pleaded is general negligence, and not specific negligence, the case falls peculiarly within the doctrine of res ipsa loquitur.

5. CARRIERS (§ 316)—INJURY TO PASSENGER— PRESUMPTIVE NEGLIGENCE—APPLICATION OF DOCTRINE OF RES IPSA LOQUITUR.

Where, in an action for personal injuries, the case discloses an unusual occurrence in the operation of machinery entirely under defendant's control, an injury without plaintiff's fault, and the undisputed relation of carrier and passenger, presumptive negligence arises, and the doctrine of res ipsa loquitur is fully applicable.

6. CARRIERS (§ 316)—INJURY IN COLLISION ON STREET RAILROAD—REBUTTAL OF PRESUMPTION OF EVIDENCE.

In an action against a street railroad company for injuries in a collision, in which the passenger was free from fault, the burden is on defendant to rebut the presumption of negligence and show that it was not guilty.

7. CARRIERS (§ 321)—ACTION FOR INJURY TO PASSENGER—COLLISION OF CABLE TRAINS— INSTRUCTIONS.

In an action against a street railroad for injuries to a passenger in a collision between cable trains, in which defendant was charged with general negligence, and in which it appeared that all the instrumentalities connected with the collision were absolutely under defendant's control, and there was no evidence of an intervening cause, the court, after first declaring the rule as to the degree of care which defendant was obliged to use in such cases, and its responsibility for failure to use such care, stated that, if there was a collision between defendant's two trains on one of which plaintiff was a passenger, the presumption was that it was due to some negligence of defendant, and the burden of proof was cast on it to rebut such presumption and show "that the injury, if any, was occasioned by inevitable accident, or by some cause which such highest degree of care could not have avoided." Held, that the instruction was proper in such case, and was not subject to objection on the ground that it too broadly stated the rule of law sought to be invoked, cast the burden on defendant, and was misleading.

8. DAMAGES (§ 216)—PERSONAL INJURIES— INSTRUCTION AS TO MEASURE AND ITEMS.

In an action for personal injuries to a passenger in a street railroad collision, the court charged that, if they found for plaintiff, they might allow damages for such injuries as she sustained as a direct result of the collision, and that in estimating such damages they might consider, when directly resulting from the injuries, the pain and suffering she endured or was reasonably certain to endure, the loss of earnings sustained, and the reasonable expense of necessary medical treatment, not to exceed $250, and that the whole verdict should not exceed the sum sued for. Held, that the instruction was not objectionable as to the measure of damages, and the items going to make up such damages.

9. TRIAL (§ 203)—INSTRUCTIONS—RECITAL OF CLAIMS IN PETITION.

The simple recital in an instruction of what plaintiff claims in her petition in a personal injury case, without assuming such claims to be true or proven, is not objectionable.

10. CARRIERS (§ 321)—COLLISION ON STREET RAILROAD—ACTION FOR INJURIES TO PASSENGER — INSTRUCTION AS TO BURDEN OF PROOF.

In an action against a street railroad company for injuries to a passenger in a collision in a case wherein the doctrine of res ipsa loquitur was applicable, the court properly refused an instruction placing on plaintiff the burden of proof, throughout the entire trial, as to the negligence of defendant's servants, and requiring plaintiff to prove by a preponderance of the evidence that defendant's servants were guilty as specified in the instruction, and that such negligence was the direct and proximate cause of the injury.

11. CARRIERS (§ 321)—ACTIONS FOR INJURIES TO PASSENGER—MODIFICATION OF REQUESTED INSTRUCTION.

In an action against a street railroad for injuries to a passenger in a collision between cable trains, a portion of an instruction, requested

by defendant, declared that if the jury believed from the evidence that the injuries sustained by plaintiff were merely the result of accident, no matter how produced, other than by negligence of defendant's servants "in charge of the train," then plaintiff cannot recover, etc. Held, that there was no error in striking out the words quoted, as the proof not only covered acts of the servants in charge of the train, but other acts which might have caused the accident.

12. DAMAGES (§ 158)—PERSONAL INJURIES— ISSUES AND PROOF.

A displaced or retroverted womb is an internal bodily injury, evidence of which is admissible under a petition in an action for personal injuries alleging that plaintiff received serious, painful, and permanent internal injuries.

13. CARRIERS (§ 317)—ACTION FOR INJURY TO PASSENGER — COLLISION BETWEEN CABLE TRAINS—ADMISSIBILITY OF EVIDENCE.

In an action against a street railroad company for injuries to a passenger in a collision between cable trains caused by the loss of control of one of them on an incline, evidence was admissible as tending to show failure to exercise the degree of care required as to rail brakes effectively used in stopping cars on a similar incline on which defendant operated its cars, but which it failed to have on the car in question, or in use on the line where the accident occurred.

14. DAMAGES (§ 132)—PERSONAL INJURIES— EXCESSIVENESS OF VERDICT.

Under the evidence in an action for personal injuries to a woman, she was shown to be seriously injured. There was evidence that she suffered from a displaced or retroverted womb. Previous to the accident she earned $120 a month, and at the time of trial she had not been able to return to work. Held, that a verdict for $5,000 was not excessive.

In Banc. Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Elizabeth Price against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The following opinion was handed down by GRAVES, J., in division No. 1:

"Plaintiff, a passenger of the defendant, sues for damages in the sum of $15,000 for injuries alleged to have been received by reason of the car upon which she was riding having collided with another on the same track. The locus of the accident is the viaduct on the Twelfth street line of defendant's railway system in Kansas City, Mo., and the date November 4, 1903, between 7 and 8 o'clock in the morning. Plaintiff was a resident of Kansas City, Kan., and was working for the firm of Emery, Bird & Thayer, having charge of the underwear department of that firm's store. On the day in question she boarded one of defendant's cars at Grandview station in Kansas City, Kan., and rode to a point two short blocks from the defendant's Twelfth street line, where it crosses Mulberry street. Procuring a transfer ticket, she went to Mulberry street and there boarded an east-bound cable train (composed of a grip car and coach, or trailer) to go to her place of business. Mulberry street is near the west end of the Twelfth street viaduct, which is quite a steep incline, upon which were two cable tracks, one for east-bound and one for west-bound cars. The east-bound cars used the south track. After leaving Mulberry street, there is quite a space covered by this overhead viaduct, and going east the first street reached, where the car rests on terra firma, is the bluff, or sometimes designated Bluff street. A block east is Lincoln street, which is on an upward incline from the bluff, or Bluff street, and whereat is a level space to receive and discharge passengers. Then there is an upward incline to Summit street, where there is another level place to receive and discharge passengers, and going east from Summit is another upward incline. The cable train upon which plaintiff was riding passed over the incline and reached in safety Summit street, where it stopped. It then started, and after going up the incline a short space started to run backward, slowly at first, but continued to increase its speed until it reached a point somewhere near the middle of the viaduct incline, where it collided with another of defendant's cable trains, bound eastward,...