Waddell v. Metropolitan St. Ry. Co.

• Decision Date: 19 May 1908
• Citation: 213 Mo. 8,111 S.W. 542
• Parties: WADDELL v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

111 S.W. 542

213 Mo. 8

WADDELL v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 2.

May 19, 1908.

Rehearing Denied June 16, 1908.

1. STREET RAILROADS—INJURY TO PEDESTRIAN —NEGLIGENCE—QUESTION FOR JURY.

In an action against a street railway company for injuries to a pedestrian struck by a car, held, under the evidence, a question for the jury whether the motorman was negligent within the "last chance" doctrine.

2. APPEAL AND ERROR — HARMLESS ERROR — ADMISSION OF EVIDENCE.

In an action against a street railway company for injuries to a pedestrian struck by a car at a street crossing, it was not reversible error to allow plaintiff's witness to testify that the motorman "was looking like he was looking at" a corner of the streets when he reached the intersecting street, and that he kept his eye on the intersecting street, they being conclusions of the witness, where he had testified without objection that the motorman's head was turned toward the corner.

3. TRIAL—REFUSAL OF INSTRUCTIONS — MATTERS SUBSTANTIALLY COVERED.

It is not error to refuse an instruction where its substance is covered by an instruction given.

4. DAMAGES—PERSONAL INJURIES — INSTRUCTIONS.

An instruction in a personal injury action that plaintiff was entitled to reasonable and just compensation for any injuries sustained by her as shown by the evidence, but not exceeding the sum claimed, was not erroneous as not limiting the recovery to the injuries as set forth in the petition, and as giving a roving commission to the jury to establish their own standard of damages, in the absence of a request for a modification restricting the jury to the proper elements of damage under the allegations in the petition.

5. SAME—VERDICT—EXCESSIVENESS.

A $6,500 verdict for personal injuries to a woman 75 years old was excessive by $1,500, where, at the time of the injury, she was not very strong, and none of her bones were broken, though for some months after the accident she suffered from pain in the left leg, which was in a dropsical condition, and she suffered from mental fear of further injury, and was painfully bruised and hurt, and confined to her bed about two weeks, and her face so swollen that the left eye could not be seen the day following the accident, and about five weeks afterwards she was able to use crutches for a time, but afterwards grew worse, and again became bedridden.

Appeal from Circuit Court, Jackson County; Hermann Brumback, Judge.

Personal injury action by Louisa Waddell against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Judgment reversed and cause remanded, unless plaintiff remits part of the recovery, in which event judgment will be affirmed.

John H. Lucas and C. C. Madison, for appellant. W. S. Cowherd, Bird & Pope, T. J. Madden, and R. J. Ingraham, for respondent.

BURGESS, J.

This is an action for damages for injuries alleged to have been caused by the negligence of defendant, its agents and servants. Plaintiff recovered judgment in the sum of $6,500, from which judgment defendant appeals. The facts are these:

Plaintiff at the time of the injury was about 75 years of age, active and well-preserved for her age, accustomed to doing housework, helping her daughters when at their homes, and occasionally assisting her son at his grocery store. On the afternoon of May 17, 1902, she left the house of her daughter Mrs. Lambert, living at 1422 Penn street, Kansas City, to go to her son's store, on the northwest corner of Fourteenth and Penn streets, in said city, and in attempting to cross Fourteenth street, near the intersection of that street with Penn, she was struck and injured by a west-bound car on the "Observation Park" line of defendant's street railway system. This was a double track line, and ran east and west on Fourteenth street, the west-bound cars taking the north track, and the east-bound the other. Fourteenth street was about 29 feet wide between the curbs, defendant's tracks occupying the central 15 feet of the street, leaving little more than 7 feet of space between the outer rails and the curb of the sidewalk on either side of the street. The cars were propelled by electricity. The course taken by plaintiff was north, on the west side of Penn street to Fourteenth. She stopped at the southwest corner of Fourteenth and Penn streets, as an east-bound car was then passing, and then, after taking a few steps westward, she proceeded at an ordinary gait to cross Fourteenth street diagonally, or in a northwesterly direction, towards her son's store. She wore a sunbonnet, which somewhat obstructed or confined her vision, was carrying a bundle in her arms, and seemed to be wholly unaware of the approach of a west-bound car on the north track. The testimony introduced by plaintiff shows that the motorman on this car was looking towards the north and did not see plaintiff, and that he failed to ring the bell or give any other warning until just at the time, or immediately before, the car struck her, when he shouted and rang the bell. It is also shown that she had stepped over the south rail of the north track when the car struck and knocked her over and forward between the two tracks; that there was no obstruction in the street to prevent plaintiff from seeing the approaching car, or the motorman from seeing her, had he been looking ahead. The car, after colliding with plaintiff, ran about a car's length, or 20 feet, before being stopped. It was going up grade at the time, and carried a load of passengers. The motorman testified that he shut off the power before the car had reached Penn street in order to slacken the speed while making the crossing, and that he had his hand on the brake wheel and was looking ahead and ringing the bell when he first noticed the plaintiff; that when he first saw her she was advancing over the south rail of the south track, and that she was then from 30 to 40 feet ahead of or distant from the car; that he realized the moment he saw her that unless she or the car stopped there would be a collision; that he shouted and started to apply the brake as quickly as he could, but that plaintiff did not stop or take notice, and was about to step in front of the car when the front gate on the left side of the car struck her. There was considerable testimony as to the speed of the car at the time. The motorman himself testified that it was running at a speed of 8 or 9 miles an hour before he shut off the power, and that its speed was from 7 to 8 miles an hour after the car crossed Penn street. An expert witness introduced by plaintiff stated that a car such as the one in question, running at a speed of 8 or 9 miles an hour and under the conditions described, could be stopped in 15 or 20 feet after the brakes were applied. Another expert witness, offered by defendant, said that the car could have been stopped in 30 or 40 feet. All plaintiff's witnesses who witnessed the collision testified that she had stepped on the north track in front of the car just before it struck her, and that the motorman was not looking ahead, and did not ring the bell before the collision. Plaintiff was picked up and carried, unconscious, to the store of her son, and she remained unconscious for about 15 minutes. Dr. Myers was called in, and gave emergency treatment, sewing up a gash over her eye, but made no examination for further injuries. She was taken to the home of her daughter Mrs. Lambert, and put to bed, where she remained two weeks. Dr. Porter was called in next day, and, according to the testimony of plaintiff's witnesses, he said it would take time for her to recover from her bruises; that she needed only liniments and hot water, and that he did not care to get mixed up in a railroad case. The day following the injury, her daughters examined her body and found her left limb bruised and discolored, and her face so swollen that her left eye could not be seen. After being some five weeks in the house of Mrs. Lambert she was taken to the home of another daughter, where she was able for a time to get around on crutches, but thereafter got worse, and was again bedridden. Dr. Welsh visited her in the fall of 1902, some months after the accident, and found plaintiff suffering from pain in the left leg, extending from the hip to the knee. Upon examination, he found that the leg was in a dropsical condition; that her mind wandered, and that she suffered all the time from mental fear of further injury. Both the mental and physical condition of plaintiff, he stated in his testimony, was such as might reasonably result from injuries such as she had received. He testified that he had been plaintiff's physician since the year 1896; that prior to the injury she was a well-preserved woman for her age and her mental condition good, but that, after the injury, she became childish, irrational, and unstable in mind. The last time he saw her he thought she was getting worse. Mrs. Lambert, plaintiff's daughter, testified that no doctor...