Robinson v. St. Louis & S. Ry. Co.

• Decision Date: 01 December 1903
• Court: Missouri Court of Appeals
• Parties: ROBINSON v. ST. LOUIS & S. RY. CO.

77 S.W. 493

103 Mo. App. 110

ROBINSON v. ST. LOUIS & S. RY. CO.

Court of Appeals at St. Louis, Missouri.

December 1, 1903.

CARRIERS—INJURY TO PASSENGERS—INSTRUCTIONS—BURDEN OF PROOF—DAMAGES—LOSS OF EARNINGS — QUANTUM — WITNESSES—EXPERT TESTIMONY — CROSS-EXAMINATION — PREJUDICIAL ERROR.

1. In an action for personal injuries it was competent for physicians, both of whom attended plaintiff while the injuries were fresh, to

testify that the curvature of plaintiff's spine was due to the injury, and that it would increase rather than decrease on account of the weak condition of his leg, where plaintiff testified that prior to the injuries he was straight and had no curvature.

2. Defendant in a personal injury action was not prejudiced by cross-examination of his expert medical witness, which elicited a statement that a physician who attended plaintiff was in a better position to form an opinion of the nature and character of the injuries than one who must form his opinion on a mere hypothetical question.

3. In an action for injuries to a passenger, an instruction that defendant was liable if plaintiff was injured in consequence of a head-end collision of its cars, if defendant's servants in charge of the car could have prevented such collision by the exercise of that high degree of care which would have been exercised by careful, skillful, railroad employés under similar circumstances, was a correct statement of the law.

4. The collision of street cars running in opposite directions on the same track is prima facie evidence of negligence in an action for passenger's injuries, which, when shown, shifts the burden on defendant to show by a preponderance of evidence that the collision was not due to its fault.

5. Evidence that plaintiff in a personal injury action was in the race-horse business, that prior to the injury he did his own training, but that after the injury he had to employ a trainer all the time, and that his earnings had been $10,000 per annum over and above bets, was sufficient to authorize the submission of loss of earnings as an element of damages.

6. In an action for injuries to a passenger, when there was evidence that plaintiff was badly injured, suffered great pain, turned gray, was partially paralyzed in his left leg, which was reduced in size, causing him to limp, that his spine had a curvature which would tend to increase, and that he paid out large sums for physicians and nurses' services, and for room rent in a hospital, a verdict for $2,500 was not excessive.

Appeal from St. Louis Circuit Court; J. A. Blevins, Judge.

Action by Harry Robinson against the St. Louis & Suburban Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Dawson & Garvin, for appellant. James M. Sutherland, for respondent.

BLAND, P. J.

Plaintiff, on August 28, 1901, was a passenger on one of defendant's street cars, which he had boarded for the purpose of being carried to the Kinloch race course, in the county of St. Louis. On the way there, there was a head-end collision of the car on which plaintiff was a passenger and another one of defendant's cars, occasioned by the negligence of the defendant's motorman in charge of the car on which plaintiff was a passenger, in failing to turn in on a switch to enable the other car to pass, as required by the rules of the defendant company. The motorman testified that the mistake was made on account of a lapse of his memory as to the switch he should take. When the cars collided the plaintiff was thrown violently and with great force across the back of the seat in front of the one occupied by him, and was struck on the back by some object in the car. The evidence is all one way that plaintiff was badly injured, and that he suffered great pain, and paid out a considerable sum to physicians and nurses and for room rent in a hospital while being treated for the injury. But there is a controversy as to the permanency of the injuries. On the part of plaintiff the evidence shows that the injury caused him to turn gray; caused partial paralysis to his left leg, and that it is reduced in size, is weak, and causes him to walk with a halting and limping gait; that his spine has a curvature resulting from the injury, and that the curvature will increase rather than diminish on account of the manner in which plaintiff is compelled to walk, caused from the defect in his left leg. On the part of the defendant the evidence tends to show that the plaintiff had entirely recovered from the injury, and that at the trial he was simulating the curvature of his spine and the...