Shinn v. United Rys. Co. of St. Louis

• Decision Date: 28 February 1913
• Parties: SHINN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

154 S.W. 103

248 Mo. 173

SHINN v. UNITED RYS. CO. OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

February 28, 1913.

1. APPEAL AND ERROR (§ 302) — REVIEW — MOTION FOR NEW TRIAL — SUFFICIENCY.

On appeal from a judgment for plaintiff, defendant is not deprived of the right to review of an instruction excepted to, because it was described in the motion for new trial as plaintiff's instruction No. 3, whereas the proper serial number was 8, where only three instructions were given for plaintiff, and the one complained of was the third in order.

2. APPEAL AND ERROR (§ 1026) — "REVERSIBLE ERROR."

"Reversible error" is error materially affecting the merits of an action, in the belief of the reviewing court.

3. APPEAL AND ERROR (§ 1068) — HARMLESS ERROR — INSTRUCTIONS.

An instruction, though objectionable for looseness in language or generality of terms, does not constitute reversible error where, in the belief of the appellate court, the instruction has done no harm, and the verdict is manifestly right.

4. APPEAL AND ERROR (§ 1068) — HARMLESS ERROR — INSTRUCTIONS.

Where, in a personal injury action, plaintiff claimed $500 damages, including $40 for clothes, $30 for medical expenses, and $156 lost wages, an instruction authorizing recovery not exceeding $500, but not limiting the amount that might be allowed for clothes, medical expenses, and lost wages, did not constitute reversible error where plaintiff was awarded only $250, defendant asked no corrective instruction, and where it is not claimed that the award was excessive, and the nature and extent of plaintiff's injury was undisputed.

Appeal from St. Louis Circuit Court; Virgil Rule, Judge.

Action by Thomas Shinn against the United Railways Company of St Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Priest, Morton Jourdan, T. E. Francis, and Robert E. Moloney, all of St. Louis, for appellant. John T. Fitzsimmons, Johnson, Houts, Marlatt & Hawes, and Blevins & Jamison, all of St. Louis, for respondent.

LAMM, J.

Charging that while he was boarding defendant's stationary street car to become a passenger, at a usual place for receiving passengers, the car was negligently started with a jerk before he could reach a place of safety, that by said negligent jerk and start he was violently thrown to the street, sustaining severe injuries in his arms, that his hat and clothes (worth $40) were ruined, that from said injuries he suffered pain of body and mind, was disabled from his avocation for two months, losing $156 in wages, incurred medical expenses of $30, and was damaged $500 in the aggregate, plaintiff sued in a justice court in St. Louis for said damages. From a verdict and judgment in his favor, defendant appealed to the circuit court. From another there, defendant appealed to the St. Louis Court of Appeals. In that court plaintiff's judgment was reversed, and his cause remanded; one of the judges dissenting. Shinn v. Rys. Co., 146 Mo. App. 718, 125 S. W. 782. On that dissent the case was certified here.

The question put to us by appellant is single, to wit, Was the giving of plaintiff's instruction (presently set forth) on the measure of damages reversible error? But, before reaching and deciding that question, the record is to be reckoned with, a survey of which is like an account of stock, debts, and credits to a merchant, a calculation of latitude and longitude to a mariner. This is so because the facts of a case may be material in determining whether a given instruction is so bad as to constitute reversible error on appeal. In this view of it, fetching a small compass on the facts is not amiss, thus: Plaintiff put in testimony tending to show that he was in the act of boarding a car at a usual stopping place to become a passenger; that by one hand he got hold of a handrail at the entrance of a stationary car, and put one foot in place on the step; that, while resting on that foot as a bearing, he was about putting his other in place; that, while in such ticklish fix (we say "ticklish," having in mind the law of physics that, to maintain one's equilibrium, the line of direction from his center of gravity should usually fall within his base), the car started with a jerk, overbalanced him, and, throwing him to the street, badly injured him, smashing his derby, and tearing and ripping up his coat and breeches. Contra, defendant's testimony tended to show that plaintiff (who seems to have been a fat man, weighing over 16 English stone) negligently ran to, caught hold of, and tried to enter, a going car, already overcrowded, and, in trying to accomplish that negligent feat, was cast to the street by the car's ordinary motion. The record shows that such was the bone of contention at the trial in the circuit court on the issue of liability or nonliability. The issue of fact thus raised was found against defendant on substantial evidence and on proper instructions. Defendant does not seek to disturb the verdict on appeal on the theory it is not supported by the testimony. We must assume, then, that the liability of defendant for damages in some amount is not an open question.

Attend to another phase of the case, viz., the quantum of damages. Plaintiff's testimony tended to show that his coat, trousers, and hat, of the value of $38.50, were ruined and lost to him; that he paid for necessary medical services a reasonable sum, to wit, $30; that he lost through disablement at least 8 weeks' wages at $18 per week, amounting to $144. These items of actual and undisputed loss aggregate $212.50. As said heretofore, the record shows the defense below hung on one lone thread, viz., nonliability. Accordingly, as just indicated, the record also shows that defendant made no attempt to either deny or mitigate the amount of plaintiff's said loss in wages and property. If at the trial it cared a snap of the fingers one way or the other about the amount, its solicitude is not disclosed by proofs, by offers of proof, or by any other position, nisi, taken by its able counsel. So defendant made no attempt to controvert plaintiff's other testimony, presently canvassed, tending to show the extent and character of the injuries to his person. His injuries were these (we copy a bit from the testimony of his physician): "The contusion and laceration of the right elbow, some spraining of the joints, and a bad sprain of the left wrist, with dislocation of the smaller bones of the upper row of the carpus." It was necessary for his doctor to reduce the dislocations and for three or four weeks (daily, as we read it) cleanse and dress his wounds and to tend his sprains until cured.

There is no pretense indulged that his injuries and sufferings were magnified or were otherwise than as indicated by the above undisputed proof. The position of defendant at the trial was not that plaintiff's wounds, hurts, and pains were nonexistent, or the simulation of a malingerer. Its position as to this element of damages was the same it was anent plaintiff's property loss, viz., nonliability. As accentuating that frank and blunt position, defendant put in no ground in its motion for a new trial that the verdict was excessive. We stress the omission of that complaint. The case must proceed on appeal, then, on the theory the verdict is not excessive, and on the further theory that the liability or nonliability of defendant for all of plaintiff's resulting damages was threshed out below, and on substantial proof settled against defendant.

It is on such record we are called on to say whether or not the giving of plaintiff's instruction on the measure of damages was reversible error. That instruction, numbered 8 by the court, is to wit: "The court instructs you, gentlemen of the jury, that, if you find for the plaintiff, you should, in estimating his damages, consider his physical condition before and after receiving the injuries for which he sues, as shown by the evidence; the physical pain and mental anguish, if any, suffered by him on account of his injuries at the time of and since such injuries, as shown by the evidence to have been caused by the injuries then and there received; the extent, if any, to which he has been prevented and disabled by reason of such injuries from working and earning a livelihood for himself at his regular employment as a bartender; his necessary expenses for medical attention in endeavoring to be cured; his loss by reason of damage, if any, to his wearing apparel, as a result of the falling or being thrown from defendant's car — and you may...