Evans v. City of Joplin

Ellison, J. This action is for personal injuries received by plaintiff on and near one of defendant’s streets, by falling into a mining shaft which had been sunk near the street line, the banks or walls of which had fallen in to such extent as to take a part of the street itself. The judgment was for plaintiff. The court, among other instructions, gave the following for plaintiff: “The court instructs the jury that if they find for the plaintiff they will find such an amount as to compensate her for the injuries sustained and in estimating her damages, take into consideration not only her age and condition in life, the physical injury inflicted, and the bodily and mental anguish endured, together with the loss of time occasioned by said injury, and all reasonable expense incurred for medical services in and about the treatment of her case, but also any and all damages, if any, which they may believe from the evidence will result to her in the future as the direct result of her injuries, not to exceed the sum of ten thousand dollars.” This instruction should not have been given. It was such error, in two respects, as to compel a reversal of the judgment. It assumes there were physical injuries inflicted and that plaintiff suffered bodily pain and mental anguish. Plummer v. Milan, 70 Mo. App. 599. It was further erroneous in directing a recovery for expense of medical services when there was no evidence as to what such expense was. Duke v. R’y, 99 Mo. 347; Rhodes v. Nevada, 47 Mo. App. 499; Smith v. R’y, 108 Mo. 243. In other respects the case, as developed by the evidence, was properly tried. There is nothing in Downend v. Kansas City, 71 Mo. App. 529, under the [23] evidence here, which, as a matter of law, would prevent plaintiff’s recovery. The judgment is reversed and the cause remanded. All concur.