Reynolds v. St. Louis Transit Company

• Decision Date: 15 June 1905
• Parties: REYNOLDS v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

88 S.W. 50

189 Mo. 408

REYNOLDS v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, First Division

June 15, 1905

Appeal from Franklin Circuit Court. -- Hon. John W. McElhinney Judge.

Affirmed conditionally.

Boyle Priest & Lehmann, George W. Easley and Edward T. Miller for appellant.

(1) There was no evidence that "defendant received plaintiff as a passenger for hire," and that question should not have been submitted to the jury. An instruction should not be given if there is no evidence upon which to base it. Paddock v. Somes, 102 Mo. 226; Wilkerson v Eilers, 114 Mo. 245; Holden v. Railroad, 177 Mo. 469; Reno v. Railroad, 79 S.W. 464. The relation of carrier and passenger arises out of contract, and to support a recovery the contract must be established. Schepers v. Railroad, 126 Mo. 665; Schaefer v Railroad, 128 Mo. 64; Duff v. Railroad, 91 Pa. St. 458; 2 Shear. & Redf. on Negligence (4 Ed.), 488; Patterson's Railway Accident Law, secs. 210, 214. The petition charges an express contract based upon a valuable consideration paid defendant by plaintiff. The instruction permitted a recovery not on the charge so made, but, on the contrary, on a charge not made. An instruction should not be broader than the pleadings on which it is founded. Holwerson v. Railroad, 157 Mo. 216; De Donato v. Morrison, 160 Mo. 581. Plaintiff cannot plead one cause of action and recover upon another. Hite v. Railroad, 130 Mo. 132; Chitty v. Railroad, 148 Mo. 64; Raming v. Railroad, 157 Mo. 477. Where plaintiff alleges an express contract the contract must be proven as set forth or plaintiff cannot recover. Eyerman v. Cemetery Association, 61 Mo. 489; Lanitz v. King, 93 Mo. 513; 1 Wait's Actions and Defenses, p. 90, sec. 2; p. 399, sec. 2. (2) The instruction is further erroneous in that it is not confined to the specific negligence charged. Waldheir v. Railroad, 71 Mo. 514; Yarnell v. Railroad, 113 Mo. 570; Hite v. Railroad, 130 Mo. 132; McManamee v. Railroad, 135 Mo. 440; Bartley v. Railroad, 148 Mo. 124; Feary v. Railroad, 162 Mo. 75; Fuchs v. St. Louis, 167 Mo. 620. The petition alleges as a sole specific act of negligence in managing one of the cars "great, negligent and violent rate of speed." The instruction permits a recovery for any act of negligence in operating the car, the language used being "so negligently ran and operated said cars, or either of them," that they collided. The plaintiff did not elect to plead only the relation of carrier and passenger and the injury, but limited the negligence in managing one of the cars. When negligence in managing that car is submitted, it must be the specific negligence charged, and no other. This rule was violated by permitting a recovery on any act of negligence by the operatives of the car. Raming v. Railroad, 162 Mo. 96. The instruction is further erroneous in that it submits to the jury a question of law rather than a question of fact. Duerst v. Stamping Co., 163 Mo. 607; Allen v. Railroad, 81 S.W. 1142. (3) The court erred in giving plaintiff's instruction 3 as to the measure of damages. This instruction violates the rule that future damages for injuries, pain or suffering must be confined to such as the evidence renders it reasonably certain will result from the injury. It is only for such damages in the future as will certainly and necessarily be sustained that a recovery may be had. Russell v. Columbia, 74 Mo. 480; Bradley v. Railroad, 138 Mo. 311; Chilton v. St. Joseph, 143 Mo. 192; Bigelow v. Railroad, 48 Mo.App. 374; Ross v. Kansas City, 48 Mo.App. 446; Albin v. Railroad, 103 Mo.App. 308; Schwend v. St. Louis Transit Co., 80 S.W. 40; Walker v. Railroad, 80 S.W. 282; Fry v. Railroad, 45 Iowa 416; Ford v. Des Moines, 106 Iowa 94; White v. Railroad, 61 Wis. 636; Hardy v. Railroad, 89 Wis. 187; Kucera v. Lumber Co., 91 Wis. 637; Cameron v. Trunk Line, 10 Wash. 507; Meeteer v. Railroad, 63 Hun 533; Curtis v. Railroad, 18 N.Y. 534; Voorheis, Measure of Damages, sec. 46, p. 75; Watson, Personal Injuries, secs. 302, 303; 1 Sutherland, Damages (3 Ed.), sec. 123; 3 Sutherland, Damages (3 Ed.), sec. 944; 1 Joyce, Damages, secs. 244, 245. By this instruction plaintiff was allowed to recover for time he had lost to the date of the trial by reason of the accident, and also any loss he had sustained during the same period by reason of diminished earning capacity, thereby erroneously allowing him double compensation for the same item of damage during the same period. The vital error in this instruction, however, is that it directs a recovery for loss of future earnings that plaintiff may sustain by reason of a diminished earning capacity that may be occasioned by his injury. 1 Joyce, Damages, secs. 244, 245; Curtis v. Railroad, 18 N.Y. 534; Watson, Personal Injuries, secs. 202, 203; Voorheis, Measure of Damages, sec. 46. (4) The verdict is excessive and bears no relation to the injury sustained. Furnish v. Railroad, 102 Mo. 438; Burdict v. Railroad, 123 Mo. 236; Chitty v. Railroad, 148 Mo. 82, 166 Mo. 435; Cambron v. Railroad, 165 Mo. 543; Newcomb v. Railroad (Mo.), 81 S.W. 1069; Railroad v. Jackson, 55 Ill. 492; Kroener v. Railroad, 88 Iowa 16; Railroad v. Dwyer, 36 Kan. 58; Wimber v. Railroad, 114 Iowa 551; Pfeffer v. Railroad, 54 N.Y. 342 (affirmed, 144 N.Y. 636); Railroad v. Hardwick, 53 Ill.App. 161; O'Donnell v. Refining Co., 41 A.D. (N.Y.) 307; Conway v. Railroad, 51 La. Ann. 146; Morris v. Railroad, 68 Hun 39; Bosworth v. Standard Oil Co., 92 Hun 485; Fordyce v. Moore (Tex. Civ. App.), 22 S.W. 235; Markey v. Railroad, 185 Mo. 348.

John W. Booth, Oscar E. Meyersieck, Richard F. Ralph, Thos. T. Fauntleroy and Shepard Barclay for respondent.

(1) Plaintiff is entitled to the benefit of the bill of exceptions appearing in his abstract of record as part of the proceedings in the trial court. Plaintiff's bill and defendant's bill were signed on the same day. Plaintiff's bill is an authentication by the trial judge of the facts stated therein and both bills should be taken as a part of the appellate record. A bill of exceptions may be amended nunc pro tunc upon the strength of any documents or papers in the trial court, and the Supreme Court will treat such amendments as made, when the facts are certified by the circuit judge and are disputed. Darrier v. Darrier, 58 Mo. 222; Garth v. Caldwell, 72 Mo. 622; Gamble v. Dougherty, 71 Mo. 599; DeKalb Co. v Hixon, 44 Mo. 341; State v. Logan, 125 Mo. 25; State v. Howell, 117 Mo. 307. (2) The undisputed facts of the collision demonstrate a liability of defendant. The address of its counsel to the jury (admitting liability) disposes of that question. Oscanyan v. Arms Co., 103 U.S. 261. (3) Where the uncontradicted facts in evidence show defendant liable, any error in the instructions on that point is immaterial on appeal. Malloy v. Railroad, 73 S.W. 159; Moore v. Railroad, 176 Mo. 528; Becke v. Railroad, 102 Mo. 544. (4) Plaintiff's second instruction was not erroneous in requiring a finding that plaintiff was "a passenger for hire," because his presence in the car as a passenger would justify the inference that he was. Whether he paid his fare or not, he would be entitled to the care due by defendant to a passenger. Wood, Railroads, p. 1207, note 2; Dorsey v. Railroad, 83 Mo.App. 528. (5) There was no need for plaintiff to prove "an express contract based upon a valuable consideration" (as contended by appellant). The contract of transportation alleged was merely by way of inducement. It was not material, inasmuch as defendant was bound to use due care (to plaintiff as a free or paying passenger) to avoid a collision between its cars. Logan v. Railroad, 82 S.W. 126. (6) Plaintiff's second instruction was not erroneous in its statement of negligence charged. A reading of the petition will show that the appellant's claim of too great latitude in said instruction is without foundation, in view of the undisputed facts, and failure to object to evidence on account of any variance. Chouquette v. Railroad, 152 Mo. 257. (7) Plaintiff's instruction 3 is not erroneous in any particular. It states the duty of defendant to plaintiff correctly under the decisions in Missouri. Clark v. Railroad, 127 Mo. 197; Jackson v. Railroad, 118 Mo. 199. (8) Plaintiff's instruction on the measure of damages was correct. It is almost a literal copy of an instruction approved by the Supreme Court in Banc, the only changes being to require further findings additional to those required by the instruction in the Rodney case. The instruction is further supported by abundant authorities, here and in other States. Rodney v. Railroad, 127 Mo. 676; O'Connell v. Railroad, 106 Mo. 484; Watson, Damages, Pers. Injuries, secs. 384-5; Baker v. Independence, 93 Mo.App. 165; Covell v. Railroad, 82 Mo.App. 187; Duerst v. Stamping Co., 163 Mo. 607; Feeney v. Railroad, 116 N.Y. 375; Mexican Central Co. v. Mitten, 13 Tex. Civ. App. 653; Kendall v. Albia, 73 Iowa 241; Barlow v. Lowder, 35 Ark. 492; Scott Township v. Montgomery, 95 Pa. St. 444. (9) The damages are not excessive, for plaintiff has lost the use of both legs and is a total wreck in body and nerve. The examples of verdicts everywhere show this is a moderate verdict on the facts. $ 80,000: Phillips v. Railroad, 5 C.P. Div. (L.R.) 280. $ 35,000: Dike v. Railroad, 45 N.Y. 113; Gulf Co. v. Shelton, 69 S.W. 653. $ 30,000: Smith v. Whittier, 95 Cal. 279; Harrold v. Railroad, 24 Hun 184; Railroad v. Davidson, 76 F. 517. $ 25,000: Ehrgott v. Mayor, 96 N.Y. 264; Hall v. Railroad, 46 Minn. 439; Ehrman v. Railroad, 60 Hun 580 (14 N.Y.S. 336), affirmed 131 N.Y. 576; Railroad v. Holland, 18 Ill.App. 418; Dieffenbach v. Railroad, 5 A.D. 91. (10) The verdict under review is the second on the same facts in this case, and is much less than the former one ($...