Schwend v. St. Louis Transit Company

• Decision Date: 29 March 1904
• Citation: 80 S.W. 40,105 Mo.App. 534
• Parties: SCHWEND, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Court of Appeals

80 S.W. 40

105 Mo.App. 534

SCHWEND, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 29, 1904

Appeal from St. Louis City Circuit Court.--Hon. Jas. R. Kinealy Judge.

Judgment reversed and cause remanded.

Boyle Priest & Lehmann, George W. Easley and Glendy B. Arnold for appellant.

(1) The 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. Curtis v. Railroad, 18 N.Y. 534, 75 Am. Dec 258; Bigelow v. Railway, 48 Mo.App. 374. (2) The proper way to draft an instruction of this character seems to be well settled by judicial precedents in this State. The jury should be instructed to find compensation "for all such damages which it appears from the evidence will reasonably result from her injuries in the future." Ross v. Kansas City, 48 Mo.App. 446; Russell v. Columbia, 74 Mo. 480; Chilton v. St. Joseph, 143 Mo. 199; White v. Railway, 61 Wis. 536, 50 Am. Rep. 154; Hardy v. Railway, 89 Wis. 187, 61 N.W. 771.

Phil H. Sheridan and Henry B. Davis for respondent.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J.

This plaintiff was a passenger upon an electrically propelled car of defendant on December 5, 1902; at close of the day's work she had left her place of employment, boarding a street car at Sixth and Olive streets, in the city of St. Louis, and had transferred to a connecting car of defendant at intersection of the latter named street with Grand avenue, and proceeded northward on the Grand avenue line to Dodier street, near where she lived, and upon attempting to alight she received the injuries, the basis of this action. The plaintiff, a widow, about thirty-six years of age, set forth in her statement of the cause of action, that the servants and agents in charge of defendant's trolley car conducted it in a negligent and dangerous manner, so that when she attempted to alight at her destination, and while in act of alighting, the car was started and she was thrown violently to the ground, suffering both external and internal injury, her left hip lacerated, her nervous system shocked and her heart affected so that she was permanently injured.

The answer, after embodying a general denial, charged that plaintiff's injuries were caused by her own negligence in stepping from a moving car, before it had stopped for the purpose of allowing her to alight, and that she had failed to signal for the car to stop, until after it had reached the usual stopping place at Dodier street, and then gave the signal, and while the car was being brought to a stop, but before it had stopped in obedience to her belated signal, she negligently stepped therefrom while still in motion, without invitation, consent or knowledge of the conductor of her intention so to do, whereby she caused her injuries.

The evidence of the opposing parties tended to sustain the allegations of the respective pleadings, and continued conflicting, even in the testimony of the medical experts upon the extent of her injuries.

The court charged the jury in a series of instructions, of which the first on behalf of plaintiff complete was as follows:

"The court instructs the jury that a street railway company is bound to exercise in the transportation of its passengers, the utmost human skill, diligence and foresight, which is such skill, diligence and foresight as is exercised by a very cautious person under like circumstances. If, therefore, the jury find from the evidence that the plaintiff was, without any negligence on her part, injured while a passenger on the railway of the defendant in alighting from the trolley car of the defendant, and that the cause of such injury was the premature starting of the car by the servant or servants of the defendant, and that the servant or servants of defendant knew or by the exercise of the utmost human skill, diligence and foresight, as above defined, might have known that plaintiff was at the time in the act of alighting from the car of defendant, then the jury will find for the plaintiff and assess her damages at such a sum as the jury believe from the evidence will compensate the plaintiff for the injuries, pain and anguish already suffered by her and which she may suffer in the future from the effects of such injuries, and to this the jury may add such reasonable sum for medical attendance as plaintiff has paid or is liable to pay and such sum as will compensate her for loss of time, if any, your verdict not to exceed the sum of $ 25,000; if the jury find the plaintiff was not injured by reason of the premature starting of said car by the servants of the defendant, then the jury will find for the defendant."

From verdict and judgment for plaintiff, defendant has prosecuted this appeal.

This instruction is assailed in that the concluding portion purporting to define the standard of damages, if any, to be awarded plaintiff, is violative of the rule that future damages must be confined to such injuries as shall appear from the evidence will reasonably result in the future from the injuries inflicted. The appropriate phraseology for such instruction has been inferentially adopted by the appellate courts of this State in a series of cases. In Chilton v. City of St. Joseph, 143 Mo. 192, 44 S.W. 766, the language adopted, to the effect that in estimating plaintiff's damages the jury might take into consideration not only the physical injury inflicted, the bodily pain and mental anguish endured and suffered, but might also allow for such...