Waechter v. St. Louis & M. R. R. Co.

• Decision Date: 01 June 1905
• Citation: 88 S.W. 147,113 Mo. App. 270
• Parties: WAECHTER v. ST. LOUIS & M. R. R. CO.
• Court: Missouri Court of Appeals

88 S.W. 147

113 Mo. App. 270

WAECHTER v. ST. LOUIS & M. R. R. CO.

St. Louis Court of Appeals. Missouri.

June 1, 1905.

1. PLEADING—MATTER OF INDUCEMENT—REFERENCE TO PRECEDING COUNT.

Where matter of inducement is stated in the first count of a petition, a mere reference to it in subsequent counts is sufficient.

2. PLEADING—SEPARATE CAUSES OF ACTION— SEPARATE STATEMENT.

In an action against a street railroad for personal injuries, the first count of the petition, after setting out matter of inducement, charged negligence on the part of the conductor in failing to discover plaintiff's perilous position and stop the car to avoid injuring him. The second count recited, "For the purpose of stating a second cause of action, plaintiff hereby repeats all the facts above recited (except the specifications of negligence and of the damages thereby sustained * * *), and prays that the said facts be taken as part of this second cause of action, to avoid unnecessary prolixity in this petition"; and then followed an allegation that the motorman "intentionally, recklessly, and with wanton disregard of plaintiff's rights," ran the car upon him. Held to sufficiently state two distinct causes of action—one for negligence, and the other for willfulness—within Code Civ. Proc. § 593 (Rev. St. 1899, § 593), providing that different causes of action joined in the same petition must be separately stated, with the relief sought for each cause of action, in such manner that they may be intelligibly distinguished.

3. SAME—ELECTION BETWEEN COUNTS.

Where both of the two counts in the petition in an action against a street railroad for personal injuries set forth the same act as causing the injury, but the first charges negligence, and the second willfulness, and the evidence is sufficient to justify a verdict on either count, plaintiff will not be compelled to elect upon which he will proceed, but is entitled to have both theories submitted to the jury.

4. CARRIERS—PERSONAL INJURIES—CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

In such action the question of plaintiff's contributory negligence held, under the evidence, to be for the jury.

5. PERSONAL INJURIES — MEASURE OF DAMAGES.

In an action for personal injuries, damages should be estimated on the basis of compensation.

6. SAME—COMPENSATORY DAMAGES — BODILY PAIN—MENTAL ANGUISH.

Pain of body and mental anguish resulting from personal injuries are elements that enter into the estimation of compensatory damages.

7. SAME—REVIEW.

On appeal in an action for personal injuries, the verdict will not be disturbed unless the damages assessed are so excessive as to shock the moral sense, or it clearly appears that the jury was influenced by passion or prejudice.

8. SAME—EXCESSIVE DAMAGES.

Where one of plaintiff's ribs was fractured, his collar bone dislocated, and his arms and back bruised, and his injuries caused him much pain and suffering and the loss of 11 weeks' time, and it appeared that the dislocation of his collar bone interfered with his lifting power, and that he would not recover of the injury under four or five years, a verdict for $2,500 is not excessive.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Action by Gottlieb Henry Waechter, as next friend of Carl August Waechter, against the St. Louis & Meramec River Railroad Company for personal injuries. From a judgment for plaintiff for $2,500, defendant appeals. Affirmed.

On the evening of January 3, 1903, the plaintiff, who was then about 20 years of age, and in the employ of the St. Louis Car Company, after finishing his day's work, boarded a Broadway car and rode to Locust street, where he was transferred to a Lee avenue car, to be carried to his home, in the northern part of the city. He left the Broadway car at the intersection of Broadway and Locust street, and boarded a Lee avenue car, which was standing on the south track on Locust street, between Broadway and Sixth street. The car he boarded was out of order, and the passengers were advised by the conductor to take another Lee avenue car, standing about three feet ahead on the same track. About 25 or 30 of the passengers, including the plaintiff, got off the car at the front platform, passed north between the two standing cars, and made a rush to get on the forward car by way of the rear platform. Plaintiff and Fred Astroth were in the rear of the bunch of passengers, and, before they could get aboard, a St. Louis & Meramec River car, traveling west on the north track, came along and caught plaintiff and Astroth between it and the standing car, and rolled the plaintiff; turning him around and around six or eight times, and dropping him on the street. One of plaintiff's ribs was fractured, his collar bone dislocated, and his arms and back bruised. The injury caused him much pain and suffering, and the loss of 11 weeks' time. There is also evidence that the dislocation of plaintiff's collar bone interferes with the lifting power of his right arm, and that he will not recover of this injury under four or five years.

The Meramec River car runs north on Fourth street to Locust, where it turns west, and runs over Locust street on the north track. Plaintiff testified that he knew these cars ran west on the north track in Locust street, and when he got off the Lee avenue car, and passed between it and the one ahead, he looked east to see if a car was coming on the north track, but did not see one, and that, after he got on that part of the street between the two tracks, the bunch of passengers in front of him obstructed his view, and he could not see the car coming from the east on the north track, and that he did not see the car that rolled him until it was right on him (within a foot or two of him), and too late to get out of its way. In his deposition taken before the trial, and read in evidence by the defendant, plaintiff stated that he did not see the car until it struck him. The evidence is all one way— that the gong was not sounded and no warning whatever was given of the approach of the Meramec River car—and all of plaintiff's witnesses testified that the car was running at a rapid rate of speed. One of plaintiff's witnesses, who got off the disabled car at the rear platform, testified that he saw the Meramec River car stop on the west side of Broadway, saw the motorman turn on the power to start the car, and, apprehending danger, stepped over the track, out of reach of the car, and saw the bunch of passengers getting on the Lee avenue car, and saw the motorman turn on more power as his car approached, and hallooed at him three times to stop, but that he paid no attention, and went ahead at a rapid speed. The plaintiff testified that he knew he was in a place of danger when between the two tracks, but that he could not have seen the approaching car, on account of the bunch of people immediately in front of him, without stepping back onto the north track. All the passengers except plaintiff and Astroth got on the Lee avenue car before the arrival of the Meramec River car, and Astroth testified he had hold of the hand rail, and was trying to pull himself up on the car step, when he was struck and rolled between the two cars.

A statement made by the motorman was read as his evidence by the defendant. The motorman stated that his car was running from 2 to 2½ miles per hour when it passed the Lee avenue car, and that there was no one on or so near the north track as to be struck by his car, and that he did not know any one had been hurt by it until informed by his conductor; that, as his car approached from the east, it was in plain view of any one looking east from where the Lee avenue car stood. The conductor testified that the car was running about two miles an hour, and that he did not know any one had been hurt by it until he had turned his car in that evening.

The petition is in two counts. The first charges negligence on the part of the conductor in failing to discover plaintiff's perilous position and stop the car to avoid injuring him. The second charges that the motorman "intentionally, recklessly, and with wanton disregard of plaintiff's rights," ran the car upon him. The answer was a general denial, and the affirmative defense of contributory negligence. The jury found for plaintiff on the first count, and assessed his damages at $2,250. The verdict was for defendant on the second count. At the close of plaintiff's evidence the defendant moved the court for a compulsory nonsuit, and at the close of plaintiff's evidence, and again at the close of all the evidence, the defendant moved the court to compel the plaintiff to elect upon which count he would proceed. These motions were all denied.

Jefferson Chandler, for appellant. R. F. Ralph and Barclay & Fauntleroy, for respondent.

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