Wellman v. Metropolitan St. Ry. Co.

• Decision Date: 31 March 1909
• Citation: 118 S.W. 31,219 Mo. 126
• Parties: WELLMAN v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

118 S.W. 31

219 Mo. 126

WELLMAN v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

1. APPEAL AND ERROR (§ 1001)—VERDICT— CONCLUSIVENESS.

A verdict supported by evidence will not be disturbed on appeal.

2. CARRIERS (§ 320)—INJURIES TO PASSENGERS—EVIDENCE.

Evidence, in an action against a carrier for injuries to a passenger while attempting to board a street car by the sudden starting of the car, held to require the submission of the case to the jury.

3. CARRIERS (§ 287)—STREET RAILROADS— PASSENGERS.

Where a person, while exercising reasonable care, was injured while boarding a street car by the sudden starting of the car, and the servants in charge of the car failed to exercise the highest practical degree of care in starting the car, the street railway company was liable for the injuries sustained.

4. APPEAL AND ERROR (§ 1066)—HARMLESS ERROR—ERRONEOUS INSTRUCTIONS.

The giving of an abstract instruction is not ground for reversal, where the instructions, when read together, could not have worked prejudicially to the party complaining.

5. DAMAGES (§ 216)—PERSONAL INJURIES— INSTRUCTIONS.

Where, in an action for personal injuries, the court charged that the jury should not allow plaintiff any sum for any injury due to any other cause than the accident complained of, an instruction that the jury in assessing the damages should take into consideration plaintiff's age and condition, the physical injuries inflicted, bodily and mental pain suffered, and any damages which would in the future reasonably result to her as the direct result of the injuries, was not erroneous as authorizing the jury in assessing damages to take into consideration plaintiff's prior diseased condition.

6. TRIAL (§ 133)—ARGUMENT OF COUNSEL— ACTION OF COURT.

The misconduct of counsel for plaintiff in stating to the jury, as to the statement of a third person in an application for a continuance that "this paper representative" of the third person was filed in the case as an affidavit for continuance, and inquiring who the third person was who was not present for cross-examination, was not ground for reversal, where the court stopped counsel and admonished him that his language was improper, and where counsel withdrew the statement and asked the jury not to consider it.

7. EVIDENCE (§ 471)—OPINION EVIDENCE— EFFECT OF BLOWS.

Where the court, jury, and counsel knew that witnesses were testifying as to the case on trial, the action of the court in permitting witnesses to express opinions as to the effect of blows on the body, without confining them to the case under consideration, was not erroneous.

8. APPEAL AND ERROR (§ 699)—INSTRUCTIONS —BILL OF EXCEPTIONS.

An instruction not incorporated in the bill of exceptions cannot be considered on appeal.

9. DAMAGES (§ 185)—PERSONAL INJURIES— EVIDENCE.

Where the evidence of personal injuries rests largely in the mind and conscience of the person injured, the court must closely scrutinize all phases of the claims; and where the record shows that the jury misunderstood the evidence or ignored the same, or did not give effect to the greater weight thereof, or returned a verdict for an excessive amount, the court must correct the error.

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

Plaintiff, while attempting to board a street car suddenly starting, was injured by the conductor pulling her against the end of the slowly moving car. She sought to show that the injuries caused female trouble. There was evidence that she had suffered from similar trouble prior to the accident, and her evidence that she had fully recovered therefrom prior to the accident was contradicted. Held, that a verdict for $7,000 was excessive, and would be reduced to $2,500.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by Ada Wellman against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

This suit was begun in the circuit court of Jackson county by the plaintiff against the defendant to recover the sum of $15,000 damages for alleged injuries received by her, caused through the alleged negligence of defendant by prematurely starting one of its cars while she was in the act of boarding the same for the purpose of becoming a passenger thereon. The trial resulted in a verdict and judgment for the plaintiff in the sum of $7,000. From that judgment defendant duly appealed to this court.

The petition, omitting formal parts, upon which the case was tried, reads as follows:

"Plaintiff, for her cause of action against defendant, says that now and at all of the times hereinafter mentioned defendant was a corporation duly organized and existing according to law and engaged as a common carrier of passengers for hire, operating lines of street railway in and upon the streets of Kansas City, Mo., and vicinity. Among its said lines is and was at all of the times herein referred to a line called the `Vine Street Line,' running upon Woodland avenue from a point north of Thirty-Ninth street to Forty-Third street, all being public streets in Kansas City, Mo. On October 30, 1904, plaintiff attempted to board one of defendant's southbound cars on said Vine street line at Thirty-Ninth street and Woodland avenue for the purpose of taking passage thereon, said car being stopped at that point for the purpose of receiving and discharging passengers. While plaintiff was in the act of getting upon said car, and while she was in a position of peril, all of which was known or by the exercise of due care should have been known to defendant, defendant negligently started said car, and plaintiff was, by the negligent starting of said car, and by the negligent act of defendant's conductor in trying to catch plaintiff as the result of said negligent starting of said car, thrown against parts of said car, and to the ground, and greatly injured. As the result of said negligence plaintiff received a severe shock to her nerves and nervous system, her legs were bruised, cut, and injured from below her knees to her ankles; her back and shoulders were bruised, sprained, and injured; her left side was bruised and injured; there was a rupture or breaking of some part of the abdominal wall; and she received severe internal injuries, particularly in the pelvic region, causing her to have peritonitis, and causing an adhesion of parts of her uterus, ovaries, and fallopian tubes to each other and to the bowels and pelvic and abdominal walls; causing the ovaries to be enlarged and made sore, producing abscesses therein and about the fallopian tubes; causing prolapsus and retroflection of the uterus; causing her pains in said affected parts, and in her head, back, shoulder, and legs. Said injuries are permanent, and plaintiff has suffered and will continue to suffer therefrom great bodily pain and mental anguish. By reason of said injuries plaintiff has been rendered an invalid, and she will continue to be such as long as she lives, her ability to bear children has been destroyed, and her period of life has been greatly shortened. Plaintiff has been confined to her bed, and will be further confined to her bed, as the result of said injuries. When plaintiff is able to get about she is only able to do so with great difficulty, and she has to limp, as the result of her injuries. As the result of said injuries, plaintiff has become and will continue to be afflicted with leucorrhœa. Plaintiff says that by reason of said injuries she has been damaged in the sum of $15,000; wherefore, plaintiff prays judgment against said defendant for said sum of $15,000 and costs of suit."

The answer contains a general denial and a plea of contributory negligence.

Plaintiff's evidence tended to show that on October 30, 1904, defendant was operating a street railway system in Kansas City, Mo.; among its lines was the Vine street electric line, which in a part of its course ran north and south along Woodland avenue from a point north of Thirty-Third street to Forty-Third street on the south. The numbered streets in Kansas City run east and west. Woodland avenue runs north and south. That on the day in question plaintiff attempted to take passage on a south-bound car at Thirty-Ninth street. She had stood near the usual stopping place at the intersection of said streets while the car was approaching from about Thirty-Third street and until it reached Thirty-Ninth street. As the car reached Thirty-Ninth street it stopped and discharged several passengers. The car was stopped so that the front end was even with the plaintiff. It was necessary for her to go to the rear of the car to get upon the same. Up to this point the testimony of the plaintiff and defendant is substantially the same. There were only four witnesses who testified with reference to the accident, three of whom claimed to have seen the accident. The plaintiff was the only witness on her own behalf on this issue. The plaintiff testified that, as soon as the car come to a stop, she immediately started to the rear and reached there before the last passenger had alighted, and while the car was still standing she attempted to get upon it, the car started, and she was thrown off of her balance; the conductor attempted to catch her, and in so doing jerked her toward him to keep her from falling. As the result of the starting of the car and this act of the conductor, she was thrown against parts of the car and to the ground, causing her to be bruised about her shoulder and hip, producing sharp, cutting pains in the left side of her abdomen, scraping her legs, and causing her to fall in a heap.

Plaintiff also introduced evidence tending to prove the allegations of the petition regarding the injuries she sustained in consequence of the accident, and that they were of a serious character: "Q. Now, did you ever have any sickness prior to the troubles that you now complain of? A. Yes. Q. ...