Smiley v. St. Louis & H. Ry. Co.

• Decision Date: 12 February 1901
• Citation: 61 S.W. 667,160 Mo. 629
• Court: Missouri Supreme Court
• Parties: SMILEY v. ST. LOUIS & H. RY. CO.

61 S.W. 667

160 Mo. 629

SMILEY v. ST. LOUIS & H. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 12, 1901.

PERSONAL INJURIES — NEGLIGENCE — DAMAGES — EVIDENCE — INSTRUCTIONS — OBJECTION NOT RAISED BELOW.

1. Contributory negligence not being pleaded, and there being no evidence thereof, in an action against a railroad company for injury to a postal clerk from derailment of the train on which he was riding in the discharge of his duty, an instruction is not erroneous because placing the burden of proof on defendant, without requiring a finding that plaintiff was without fault.

2. Evidence that an injury is permanent, and that further pain to body or mind is reasonably certain, is sufficient basis for compensation for future suffering.

3. The case having been tried on the theory that the petition sufficiently alleged plaintiff was made insane from the accident, objection that the petition did not do so cannot be raised for the first time on appeal.

4. Though one of the facts on which witness bases his opinion was learned from the statement of another, admission of the opinion is harmless, the fact being undisputed and conceded.

5. Where plaintiff sues for an injury that resulted in insanity, the fact that he does not introduce the depositions of the doctors who treated him before he became insane, and that one of them, when treating him, told him that his then condition was due to the motion of the train on which he was constantly riding, is immaterial.

Appeal from circuit court, Boone county; John A. Hockaday, Judge.

Action by Samuel W. Smiley against the St. Louis & Hannibal Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

J. D. Hostetter and Geo. A. Mahan, for appellant. Chas. J. Walker, Norton, Avery & Young, and Turner & Hinton, for respondent.

BRACE, P. J.

This is an action for personal injuries, in which the plaintiff obtained judgment in the court below for $5,000, and the defendant appeals.

The errors assigned for reversal are the giving of instructions numbered 2 and 3 for the plaintiff, the refusal to give instruction numbered 11 for the defendant, the admission of illegal evidence for the plaintiff, the exclusion of legal evidence for the defendant, and the refusal of the court to grant a new trial on the ground of excessive damages. The pleadings and evidence, so far as is necessary, will be noticed in the course of the opinion. Instructions numbered 2 and 3 given for the plaintiff are as follows: "(2) The court instructs the jury that if they believe from the evidence that the plaintiff was a postal agent in the employment of the United States, and that at the time of the accident, while in the discharge of his duties as such postal agent, he was being transported on defendant's passenger train in a postal or mail car, with the knowledge and consent of defendant, and that such train was derailed, overturned, and thrown down an embankment, and that the plaintiff thereby received injuries to his head, body, or ankle, then it devolves upon the defendant to prove to the satisfaction of the jury that such derailment and overturning of said train was not caused by any fault, negligence, or carelessness on its part in running said train, and in providing and maintaining a reasonably safe track and roadbed over which to run the same; and, unless it is so shown, the verdict should be for the plaintiff. (3) If the jury find for the plaintiff, then, in assessing his damages, they will allow the reasonable expense, if any, which they may believe from the evidence that he has incurred for medical treatment growing out of the injuries sustained by him in the derailment of defendant's train. They will also allow him a reasonable compensation for the loss of time and earnings, if any, that they may believe from the evidence that he has sustained up to the present time in consequence of such injuries; and the jury may take into consideration the impairment, if any, in plaintiff's capacity to earn a livelihood, which they may believe from the evidence that he has sustained in consequence of such injuries, and allow him a reasonable compensation therefor; and the jury may also take into consideration the physical pain and mental anguish, if any, that they may believe from the evidence that he has suffered in consequence of such injuries, and allow him a reasonable compensation therefor; and also they may take into consideration the physical pain and mental anguish, if any, that they may believe from the evidence that he will suffer in the future in consequence of such injuries, and allow him a reasonable compensation therefor, — not to exceed in all the sum of ten thousand dollars."

1. The first objection urged to plaintiff's instruction No. 2 is that it "transfers the burden of proof to defendant, without requiring the jury to find that the plaintiff was without fault at the time of receiving his injury"; in answer to which it is only necessary to say that while, in a proper case, such a qualification of an instruction of this character may be necessary, there was no necessity for it in this case. The answer was simply a general denial. Contributory negligence on the part of the plaintiff was not alleged, nor was there a scintilla of evidence tending to prove such negligence on his part. On the contrary, the undisputed evidence was that the plaintiff was at his post, in the discharge of his duties, at the time the train was derailed, overturned, and thrown down the embankment by reason of the defective condition of the defendant's roadbed, inflicting upon him the injuries of which he complains. The law presumes that he was in the exercise of ordinary care at the time, in the absence of any proof to the contrary, and, as this instruction properly told the jury, devolved upon the defendant the duty of showing that the derailment and overturning of the train was not caused by its negligence. Buesching v. Gaslight Co., 73 Mo., loc. cit. 233; Dougherty v. Railroad Co., 81 Mo. 325; Magoffin v. Railway Co., 102 Mo. 540, 15 S. W. 76; Furnish v. Railway Co., 102 Mo. 438, 13 S. W. 1044; Clark v. Railway Co., 127 Mo. 197, 29 S. W. 1013; Och v. Railway Co., 130 Mo. 27, 31 S. W. 962, 36 L. R. A. 442; Hite v. Railway Co., 130 Mo. 132, 31 S. W. 262, 32 S. W. 33.

It is next urged that this instruction is vicious, because there was no evidence on...