Stahlberg v. Brandes

• Citation: 299 S.W. 836
• Decision Date: 08 November 1927
• Docket Number: No. 20125.,20125.
• Court: Court of Appeal of Missouri (US)
• Parties: STAHLBERG v. BRANDES.

299 S.W. 836

STAHLBERG v. BRANDES.

No. 20125.

St. Louis Court of Appeals, Missouri.

November 8, 1927.

Rehearing Denied December 20, 1927.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Action for personal injuries by Laura Stahlberg against Laura Brandes. Judgment for plaintiff and defendant appeals. Reversed and remanded.

Roessel & Minton, of St. Louis, for appellant.

Roby Albin, of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff in being struck by an automobile driven by defendant. The accident occurred at the intersection of St. Charles Rock road and Woodson road, in St. Louis county, on May 1, 1924, in the afternoon. Plaintiff was walking west on the south side of St. Charles Rock road, and the defendant was driving her automobile west on said road. There was an automobile parked on the north side of said road. Plaintiff's evidence tends to show that she was walking on the dirt shoulder just to the left of the concrete slab when she was struck; that the defendant, in passing the parked automobile, apparently lost control of her automobile so that it ran off the concrete slab to the left, and struck the plaintiff, and then swerved to the right side of the slab and ran some distance west before it stopped. Defendant testified that plaintiff was walking west on the concrete slab near but to the south of the center of the concrete slab; that she swerved her automobile to the left to pass the parked automobile, and in doing so she passed to the right of the plaintiff; that the automobile cleared the plaintiff; that it passed within about two feet of her; that when she passed the plaintiff she heard a scream and looked back and saw plaintiff lying on the ground just at the edge of the concrete' slab. After the accident plaintiff was taken to the Overland Hospital. Dr. O'Connell treated her at the hospital. After she left the hospital, Dr. Glasscock treated her. His treatment began on May 31, 1924, and continued at intervals until some time before Christmas, 1925. Dr. Tate made an examination of the plaintiff at the instance of defendant on July 25, 1924. Dr. H. F. Langsdorf also examined her at the instance of Dr. Glasscock. Dr. O'Connell and Dr. Glasscock testified on behalf of the plaintiff. Dr. Tate testified on behalf of the defendant. Dr. Langsdorf was not called as a witness.

The trial was had on March 2, 1926, and resulted in a verdict and judgment in favor of plaintiff for $3,000. Defendant appeals.

The defendant assigns error here upon the giving of the following instruction, which was the only instruction given or requested on behalf of the plaintiff:

"The court instructs the jury that, if you find in favor of the plaintiff, upon the issues in this case, you will, in assessing her damages, if you find she was damaged, at such sum as you find from the evidence in this case will fairly compensate her for all, if any, injury or damage you find from the evidence she has sustained or will sustain as a direct and proximate result of her being injured and damaged, if you believe she was injured and damaged, and in determining what amount you will award to her, if any, you will take into consideration:

"First. Whatever, if any, sums you find from the evidence, if any, plaintiff, by reason of the injury and damage, mental anguish, pain, and suffering, suffered by her, if any, and caused through the negligence of the defendant in this case, if you believe that said defendant was careless and negligent, and if you believe that the negligence and carelessness, if any, of the defendant, caused the plaintiff to be injured or damaged, and not exceeding the sum of $9,725, and in fixing this amount you will take into consideration the permanence of the injury to plaintiff's body and to plaintiff's nervous system, if any.

"Second. Whatever, if any, sums you find from the evidence the plaintiff, by reason of the injury and damage sustained, if any, has paid or assumed liability to pay for, if any, medical and surgical aid and medicines and hospital expenses, not exceeding the sum of $275.

"But in no event must your verdict, if any, exceed the sum of $10,000.

"By naming this amount, the court does not mean nor intend that you shall find for this sum, or any sum, but merely states that this is the amount plaintiff claims in her petition."

The language of the first two paragraphs of the instruction is so ungrammatical and chaotic that it is difficult to say what the jury may have made of it. The defendant complains of it on the ground that is suggests the sum of $9,725 as the amount they ought to fix as the measure of plaintiff's recovery, In view of her injury and damage, mental anguish, pain, and suffering and the permanence of the injury to her body and to her nervous system. We are inclined to the view that this suggestion lurks in the peculiar language Of the instruction, but, since the jury apparently ignored the suggestion, we are unwilling to say it was harmful.

Defendant complains of the instruction on the further ground that it submits the question of defendant's negligence to the jury without specifying the act or omission which would constitute negligence. The instruction is probably erroneous in this respect but the error, if any, was cured or condoned by instructions given at the instance of the defendant, as follows:

"The court instructs the jury that the fact that plaintiff was injured, is, in itself, no evidence of any negligence on the part...