Van Cleve v. St. Louis, M. & S. E. Ry. Co.

• Decision Date: 06 April 1909
• Parties: VAN CLEVE v. ST. LOUIS, M. & S. E. RY. CO.
• Court: Missouri Court of Appeals

118 S.W. 116

137 Mo. App. 332

VAN CLEVE v. ST. LOUIS, M. & S. E. RY. CO.

St. Louis Court of Appeals. Missouri.

April 6, 1909.

1. CARRIERS (§ 303)—DUTY AS TO PASSENGERS ALIGHTING FROM TRAIN—PERSONAL INJURIES—NEGLIGENCE.

It is the duty of a railroad to exercise high care for the safety of a passenger alighting from a train; and to back the car while the passenger is alighting, without waiting a reasonable time, is actionable negligence, if injury results.

2. CARRIERS (§ 321)—INJURIES TO PASSENGER ALIGHTING FROM TRAIN—NEGLIGENCE— ISSUES—INSTRUCTIONS.

Where the petition alleged that, while plaintiff, a passenger, was alighting from defendant railroad's car, it was negligently jerked and backed, thereby causing plaintiff to "fall against the depot platform," etc., an instruction authorizing a recovery if because of defendant's negligent act plaintiff was injured was not erroneous in failing to require a finding that plaintiff fell against the platform; it being immaterial whether she fell against the platform or the earth.

3. APPEAL AND ERROR (§ 1097) — LAW OF CASE—INSTRUCTIONS ON FORMER APPEAL.

An instruction approved by the court on appeal is the law of the case on a subsequent appeal.

4. APPEAL AND ERROR (§ 204)—EVIDENCE— OBJECTIONS IN TRIAL COURT.

An assignment that the court erred in admitting certain testimony will be overruled, where no objection or exception was made at the trial.

5. DAMAGES (§ 132)—PERSONAL INJURIES— EXCESSIVE DAMAGES.

Where plaintiff, a strong, healthy woman 36 years old, received permanent injuries, developing tuberculosis, and was in an advanced stage thereof at the time of the trial, suffered great pain, became worn and emaciated, and paid from $200 to $300 for medicines and medical aid and attention, a verdict for $4,500 was not excessive.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Susie Van Cleve against the St. Louis, Memphis & Southeastern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

For former appeal, see 124 Mo. App. 224, 101 S. W. 632 W. F. Evans and Moses Whybark, for appellant. Duncan & Bragg, Ward & Collins, and J. S. Gossom, for respondent.

NORTONI, J.

This is a suit for damages alleged to have accrued to the plaintiff from personal injuries received by her while a passenger alighting from defendant's train. Plaintiff recovered, and defendant prosecutes the appeal.

The evidence tends to prove the plaintiff was a passenger on the defendant's mixed train. She boarded the train at Yarbro, Ark., destined to Caruthersville, Mo., and paid the usual fare to the conductor. She was injured while in the act of alighting from the defendant's passenger coach at the depot at Caruthersville, because of a sudden jerk of the train, which precipitated her from the steps of the coach against the depot platform. It appears the train had stopped at the defendant's depot at Caruthersville, and the defendant's conductor and brakeman in charge thereof had invited the passengers to alight therefrom. The date of the injury was November 19th. Rain had fallen during the day, and by reason thereof mud had accumulated on the steps of the passenger coach from the shoes of those passing in and out. This had slightly frozen and was slippery. While plaintiff was in the act of alighting from the passenger coach, with her grip in her hand, and while she was upon the steps thereof, the train was suddenly jerked by a movement of the locomotive, which caused her to slip on the mud and ice accumulated on the car steps and fall, striking her breast against the platform of the depot, her limbs passing down between the depot platform and the car steps. She was immediately taken up by bystanders and carried into the depot waiting room, where she had a hemorrhage from the lungs. Afterwards she was carried to the hotel at Caruthersville, where she was confined to her bed for about eight days, and suffered frequent recurring hemorrhages. It appears that four or five weeks elapsed before she was able to perform any kind of service, and then she could only do a slight amount of housework each day. From the testimony of the physician who attended her it appears the fifth rib on the left side was broken near the breastbone, and probably inflicted an injury to the left lung. Numerous witnesses gave testimony to the effect that prior to her injury plaintiff was a strong, robust woman, in good health, of about 158 pounds in weight, and that she had never had a hemorrhage of the lungs prior to that time. It appears she had continued to suffer ever since the injury from hemorrhages of the lungs, and had depreciated from 158 to 130 pounds in weight; that tuberculosis of the lungs set in immediately after the injury, and has continued ever since. If the testimony of her witnesses, together with the inferences arising therefrom, are to be taken as true, plaintiff has been a great and continued sufferer since she was injured, and is now far advanced in the throes of consumption, resulting from a traumatic injury to the lung received from her fall against the depot...