Wilkerson v. Metropolitan Street Railway Co.

• Decision Date: 04 November 1907
• Citation: 105 S.W. 24,126 Mo.App. 613
• Parties: SYBEL S. WILKERSON, by next friend, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

105 S.W. 24

126 Mo.App. 613

SYBEL S. WILKERSON, by next friend, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 4, 1907

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

AFFIRMED.

Judgment affirmed.

John H Lucas, Frank G. Johnson and Ben F. White for appellant.

The court erred in giving instruction numbered 8P for plaintiff on the measure of damages. The evidence is clear and conclusive that plaintiff was attended only two weeks by a doctor, and that at the time of the trial she had fully and completely recovered. There being no evidence on which to base this instruction, it was error to have given it. Batten v. Transit Co., 102 Mo.App. 285; Albin v Railroad, 103 Mo.App. 308; Schwend v. Railroad, 105 Mo.App. 534; Walker v. Railroad, 106 Mo.App. 320; Holden v. Railroad, 108 Mo.App. 665; Pentoney v. Transit Co., 108 Mo.App. 681; Ballard v. Kansas City, 110 Mo.App. 391; Hass v. Railroad, 111 Mo.App. 707; Caplin v. Railroad, 114 Mo.App. 256; Steinman v. Railroad, 116 Mo.App. 673; Smedley v. Railroad, 118 Mo.App. 103; Dean v. Railroad, 199 Mo. 386, 97 S.W. 910.

John L. Wheeler and John C. Nipp for respondent.

The court did not err in giving the instruction complained of on the measure of damages. There was evidence to show some permanency in the injuries. The amount of the verdict, however, showed the jury did not take into consideration the permanency of the injuries. O'Connell v. Railway, 106 Mo. 4; Rodney v. Railway, 127 Mo. 676; Bright v. Kansas City, 187 Mo. 694; Reynolds v. Transit Co., 189 Mo. 408; McKinstrey v. Railway, 108 Mo.App. 19; Lacland v. Mining Co., 110 Mo.App. 640; Nelson v. Railway, 113 Mo.App. 711; Caplin v. Railway, 114 Mo.App. 260; Kelly v. Light Co., 115 Mo.App. 654.

OPINION

JOHNSON, J.

--Plaintiff, an infant, sues by next friend to recover damages for personal injuries alleged to have been sustained by her in consequence of the negligence of defendant. The jury gave her a verdict for $ 300. After ineffectually moving for a new trial and in arrest of judgment, defendant brought the case here by appeal. Plaintiff, at the time of her injury, which occurred on September 18, 1904, was between two and three years of age, and was living with her mother on East Eighth street in Kansas City. Defendant was operating a double-track line of street railway along that thoroughfare. The child, in playing, had escaped the watchfulness of its mother for a few moments and gone into the street in front of its home. When discovered, it had left the sidewalk and was approaching the south track of defendant's road. The mother, warned by the screams of a neighbor that the child was in danger, ran out to bring it back, but it was then on the track and, before she could reach it, was struck by a rapidly moving east-bound car and was injured.

As the only claim of error now urged relates to the instruction given for plaintiff on the measure of damages, it is not necessary to go into the subject of defendant's negligence. That instruction is as follows: "If you find for the plaintiff you will, in assessing her damages, take into consideration her age, the injuries sustained by her, if any, by reason of her being struck by said car, the physical pain, mental anguish, if any, suffered by her by reason of such injuries and such damages, if any, of the nature above specified as you believe from the evidence she will sustain in the future as the direct effect of such injuries, and assess the same in such amount as, under all the facts and circumstances shown in evidence, will be just and reasonable compensation to the plaintiff, not exceeding the sum of five thousand (5,000) dollars."

It is contended by defendant that all the evidence shows conclusively that at the time the cause was tried, plaintiff had completely recovered from her injuries and, therefore that the jury should not have been permitted to assess damages for future consequences which might result, but which were not shown to be reasonably certain to follow. The severe nature of plaintiff's injuries appears from the testimony of the physician who was called in immediately to treat her: "She had a lacerated hand, and very deeply lacerated, requiring three of four stitches, extending clear across--not entirely across the hand, almost across the hand, down as far as the tendons, and she had a number of bruises on the head; the skin was eroded in various places on the head, all over the head, among the hair and forehead; she must have had a dozen or two bruises, the size, some of them, the size of a dollar, and some of them smaller; she had some kind of internal injury in the skull, probably a rupture of a blood vessel, or a number of blood vessels, concussion of the brain; she had some bruises also on her side. . . . Q. What kind of treatment did you give her? A. Well, I found her in a condition of shock; when I reached the place, her heart was almost failing; she was unconscious and panting very rapidly, and I had to give her stimulating treatment first, and about midnight we had other complications to contend with; she went into spasms. She showed some signs of consciousness before that, but frequently would relapse, though into unconsciousness, and I expect about midnight, she had been unconscious for sometime in that attack, and she was seized with convulsions on the right side, and every muscle on her body went into a convulsion, every muscle in the right half of her body went into convulsions; I don't remember about the face, now, but every muscle of the right side of her body was in violent spasm, jerking backwards and forwards; the left side of her body was in what we call a rigid spasm, meanwhile, and it became so violent, I called for consultation, and sent for one of our good surgeons, Dr. Neff, and we determined upon a sedative treatment, and to hold an operation in abeyance. There seemed to be some suspicion of fracture of the skull, possibly of the internal plate,...