Winterman v. United Rys. Co. of St. Louis

• Decision Date: 07 May 1918
• Docket Number: No. 15050.,15050.
• Parties: WINTERMAN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

203 S.W. 486

WINTERMAN v. UNITED RYS. CO. OF ST. LOUIS.

No. 15050.

St. Louis Court of Appeals. Missouri.

May 7, 1918.

Rehearing Denied May 22, 1918.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

"Not to be officially published."

Action by Ewald L. Winterman against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

T. E. Francis and Chauncey II. Clark, both of St. Louis, for appellant. Leonard & Sibley, of St. Louis, for respondent.

BECKER, J.

Defendant appeals from a judgment for $4,900 rendered against it and in favor of plaintiff in action for personal injuries. Plaintiff's petition alleges and his evidence tends to prove that, while he was in the act of boarding a street car which had come to a stop for the purpose of taking him on as a passenger, the car started. While plaintiff grasped the handrail with his right hand, and had his left foot on the rear step of the car, and while his right foot was still on the ground and his weight was nearly equally balanced on each foot, the car started forward with a sudden and violent jerk and lunge, whereby plaintiff's right arm and shoulder received a severe jerk and the entire right side of the trunk of the body was twisted and wrenched so as to partially dislocate, or cause to become partially dislocated, three of his ribs. At the time of the trial plaintiff was suffering with curvature of the spine, which resulted from these injuries, together with a swelling, thickening, and hardening of the muscles and ligaments in the region where his ribs were partially dislocated at the spine, and at the time of the trial plaintiff was compelled to wear a brace or cast to support such ribs and to produce, if possible, "an immobilization" of the injured vertebræ of the spine. The defendant withdrew its plea of contributory negligence at the beginning of the trial and stood upon a general denial. Defendant did not introduce the testimony of any eyewitnesses, in that it had no report of the alleged accident at the time of its occurrence. A verdict resulted in favor of the plaintiff and against the defendant for $5,000 and a remittitur of $100 was ordered and entered because an instruction for plaintiff permitted a recovery for medical expenses in excess, by such sum, of the amount alleged in the petition. After an unavailing motion for new trial defendant brings this appeal.

Learned counsel for appellant argues most earnestly that plaintiff's instruction defining the measure of damages is erroneous for the reason that it permitted an award for loss of earnings in the future in an absence of proof of what plaintiff's earnings had been in the past, and for the further reason that such instruction permitted an award for loss of earnings in the future when the evidence did not show, nor tend to show, that the plaintiff would not be able to perform the same work he had been performing prior to the alleged accident. The instruction complained of reads as follows:

"The court instructs the jury that, if under the evidence and the law as declared in other instructions of the court you find a verdict in favor of plaintiff, you should assess the damages in your verdict at such a sum as you believe from the evidence to be a reasonable compensation for any one or mole or all of the following items of damage, if any, which you find and believe from the evidence the plaintiff has already sustained (or is reasonably certain to sustain in the future) as a direct result of the acts of the defendant complained of in this action, namely: (1) For pain of body, if any; (2) for mental anguish, if any; (3) for necessary expenses for medical attention, if any, not exceeding $200 to this date, however; (4) for necessary expenses for drugs, bandages, dressings, braces, X-ray photographs, baths, and treatments, if any, not exceeding, however, $300 to this date; (5) for loss of earnings, if any, in the future, there being no evidence of loss of earnings to this date; (6) for injury to his body, if any. But in no event shall your verdict exceed the total sum of $10,000."

As we read this record we cannot view plaintiff's case as one in which there is an entire absence of any testimony whatever tending to show what the plaintiff was able to earn prior to receiving the injuries complained of.

Plaintiff testified that prior to the day upon which he received his alleged injuries he had been acting as secretary of the Osage Lumber Company, of which company his brother was president; that his work was "filing claims, tracing accounts, and things of that sort, general office duties." He further testified that he had been forced to remain away from his work, and, in answer to the question of how often he had thus "been forced to lay off from work," answered:

"I have never kept any track; sometimes it would pain me too...