Holden v. Missouri Railroad

BLAND, P. J. (after stating the facts). — 1. The question propounded to Dr. Bradley, to which defendant objected, does not call for two opinions, as contended by defendant, but assumes the existence of the fact to which the witness had previously testified, to-wit, that he had made a professional examination of plaintiff’s ears and found them in the condition described in his evidence. Assuming the existence of this condition, the question then proceeded to set forth a state of- facts in evidence in respect to the injury and .to inquire whether or not this state of facts would, in the opinion of the witness, produce the diseased condition of plaintiff’s ears that he had found. There was — 672 — before tbe witness a given condition or effect ascertained by bis examination. Tbe injury was described by tbe question and be was asked if tbe injury described would likely produce tbe effect be found. On examination of an expert concerning a personal injury, a question may be either as to tbe cause of tbe injury or condition or, conversely, wbat would be tbe effect on tbe body of such force or blow, or in tbe presence of a given effect, wbat would cause it or might result therefrom. Railroad v. Smith, 69 Ill. App. 69; Williams v. State, 64 Md. 384; Bush v. Railway, 113 Mich. 513; Griffith v. Railroad, 17 N. Y. Sup. 692. No error was committed in overruling defendant’s objection to tbe question. 2. Defendant insists that tbe following clause in tbe instruction on tbe measure of damages, to-wit, “or that be will be likely to suffer in tbe future by reason of said injury,” gave to tbe jury “a roving commission” to assess whatever damages for future loss they might believe would, by any possibility or probability,, result from tbe injury, basing this contention on tbe word “likely.” In Schwend v. St. Louis Transit Co., 80 S. W. 40, we held that present damages for. future consequences as the result of an injury could not be recovered, unless such future consequences would reasonably result from tbe injury, and condemned an instruction that told tbe jury it might assess damages for sucb future consequences as might result from tbe injury. We have followed tbe Schwend case in a number of other decisions rendered at this term but not yet reported.. We think tbe best considered cases, here and elsewhere, base tbe right to recover present damages for future consequences upon tbe fact that there is a reasonable certainty that sucb future consequences will accrue. Does tbe instruction under consideration confine tbe jury to tbe assessment of sucb damages as are reasonably certain to accrue in tbe future from tbe injury complained of I Tbe term, “likely” was con — 673 — straed, in the case of Illinois Central Railway Co. v. Davidson, 76 Fed. 517, to mean what may he reasonably supposed, and it was said: “Things which, under the evidence, are likely to happen, are reasonably certain to happen.” The same judicial construction was given the term in Scott Township v. Montgomery, 95 Pa. St. 444, and in Curtiss v. Railroad, 20 Barb. 282. In Hardy v. Railway, 89 Wis. 183, the charge allowed the jury to assess damages for pain and suffering which the plaintiff “may endure hereafter,” and for the loss of such time “as the evidence convinces you she will he likely to suffer hereafter.” Commenting on this instruction, the court said: “The rule is that the alleged permanent disability, in order to be a ground for damages, must he one that is reasonably certain to result from the injury complained of, ’ ’ citing White v. Railroad, 61 Wis. 536. In the latter case the court condemned a charge that authorized the jury to assess damages for such future loss as may accrue from the injury complained of. In Kucera v. Merrill Lumber Co., 91 Wis. 637, on the authority of Hardy v. Railway, supra, the court held a charge erroneous that told the jury the plaintiff might recover for the pain and suffering which he was “likely to endure in the future.” The charge in the.Hardy case authorized the jury to assess damages for pain and suffering which the plaintiff “may endure hereafter.” We think it was this clause in the charge the court had in mind when it said the charge was too broad in its terms. This is apparent, we think, from the fact that the case of White v. Railway, supra, is cited as authority for holding the charge erroneous. If the court did not have in mind the word “likely,” used in the second clause of the charge, then the term was not construed by the court. No reference whatever is made to the term anywhere in the opinion, nor is the term construed in the Kucera case. The charge is not discussed at all hut simply held — 674 — erroneous on the authority of the White case. We think the court overlooked the first clause in the charge in the White case and for this reason misapprehended what the court had in mind when it condemned the charge, and we conclude that Kucera v. Merrill Lumber Co., supra, is not authority for holding that the term “likely,” as used in this character of instruction or charge to a jury gives it “a roving commission” to go into the field of conjecture to assess present damages for future consequences resulting from an injury. Among other definitions of the term “.likely,” given by some of the lexicographers, are the following: “Worthy of belief.” Webster’s Dictionary. “Reasonably expected.” Standard Dictionary. “As may be reasonably supposed.” Century Dictionary. Of course the term has other significations less definite than the foregoing, and for this reason it should not be used in an instruction to a jury when plainness and definiteness of direction are required, but we do not think the jury understood by the instruction that they were commissioned to estimate the damages irrespective of whát they might believe from the evidence would reasonably result in the future from the consequences of the injury, but did not understand that the future losses for which they might assess present damages were such losses as were reasonably certain to accrue from the injury. It was in this sense the learned trial court understood the term as used in the instruction, and there is nothing in the record to induce us to believe that the* jury had a different understanding. We think a fair construction of the term, as used in the instruction, means, and was understood by the jury tornean, such losses as were reasonably certain to accrue in the future as the result of the injury complained of. 3. Negligence is thus defined by the text-writers: “Negligence, in its civil relations, is such an inadvertent imperfection, by a responsible human agent, in the discharge of a legal duty, as immediately produces, — 675 — in an ordinary and natural sequence, a damage to another. The inadvertency, or want of due consideration of duty, is the injuria, on which, when naturally followed by the damnum, the suit is based.” Wharton on Negligence, sec. 3.. . “Negligence, constituting a cause of civil action, is such an omission, by a responsible party, to use that degree of care, diligence and skill which it was his legal duty to use for the protection of another person from injury as, in a natural and continuous sequence, causes unintended damage to the latter. ” 1 Shearman & Red-field on Negligence, sec. 3. Thompson on Negligence (1 Ed.), vol. 1, p. 135, approved the following definition of negligence of Welles, J., in Vaughan v. Railroad, 5 Hurl. & N. Exch. 678, in which it was said: “Now, the definition of negligence is the absence of care, according to circumstances.” In McMahon v. Pacific Express Company, 132 Mo. 641, 34 S. W. 478, our Supreme Court said: “Negligence consists in doing something which a reasonably prudent man would not have done under the circumstances, or in failing to do something which a reasonably prudent man, under the circumstances, would have done. ’ ’ In American Brewing Association v. Talbor, 141 Mo. 1. c. 685, 42 S. W. 679, a reasonably prudent man is described as follows: “The reasonable man, then, to whose ideal behavior we are to look as the .standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible: He will order his precaution by the measure of what appears likely in the known course of things. ’ ’ Whether or not the defendant was negligent, in an action founded on negligence, generally includes two questions: (1) whether the particular act or acts charged in the petition were performed or omitted, and — 676 — (2) whether the performance or omission of these acts or some one or more of them was a breach of legal duty. 1 Shearman & Bedfield on Negligence, sec. 52. It is said in numerous decisions that the first of these questions is for the jury and the second is a question of' law for the court. This is so when the act complained of is a violation of a statute or city ordinance or where the standard of duty is otherwise fixed or where the act is so obviously negligent that reasonable minds can not differ about it. But'there is a territory beyond this boundary line where the court may not say as a matter of law that the act was or was not negligent, but must give to the jury a standard by which to gauge or measure it and leave it to them to determine from their own experience and observation whether or not the act or omission was negligent. 1 Shearman & Bed-field on Negligence, sec. 53. As. Judge Thompson says (2 Thompson on Negligence (1 Ed.), pp. 1235-36): “In the great body of cases, there is not evidence of facts from which the court may say that, if proven, they substantiate the case of the plaintiff or defendant. This arises from the fact that cases present such a variety of circumstances that courts have had comparatively little opportunity of defining the duties of the parties, and for the same reason it is eminently proper that the degree of care demanded of persons in -various situations should be determined by the triers of fact: ’ ’ In McCully v. Clarke & Thaw, 40 Pa. St. 399, the action was brought for negligence. The point of the accusation was that the defendants had so negligently kept and continued a certain pile of coal which had taken fire, and so negligently and wrongfully failed to extinguish the fire, that the warehouse of the plaintiff had been ignited and destroyéd. In respect to this state of facts, Strong, J., said the court was right in declining to charge the jury that if they believed certain facts enumerated were proven, defendants were — 677 — guilty of negligence as a matter of law; that whether or not the facts enumerated constituted negligence was a question for the jury. In Grand Trunk Railway Co. v. Ives, 144 U. S. 408, it was said: “When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury.” The first and second specified acts of negligence set forth in the petition charged violations of city ordinances in respect to the operation of street ears in the city of St. Louis, and in regard to this it was the duty of the court to tell the jury that a violation of either or both was negligence per se. To establish the third specification (negligence in operating the car at a careless and negligent rate of speed), it devolved on the plaintiff to show that the speed was not only excessive but that it was negligent. Whether or not it was negligent depended upon the place and the surrounding circumstances and unless these were such that reasonable minds could come to no other conclusion than that it was negligence, the question of excessive speed and negligence was for the jury to determine. The court, in respect to these several acts of . negligence, instructed the jury on the part of defendant as follows: ‘ ‘ The court instructs the jury that unless they believe from the greater weight of the evidence that the defendant, through its servants in charge of its car, at the time and place of the accident, negligently ran its car at an excessive and dangerous rate of speed, or failed to exercise reasonable care to keep a watch for persons and vehicles about to be in danger of being struck thereby, or about to approach the crossing at Thirteenth and Pine streets, or negligently failed to ring the gong, and that one or more of such acts of negligence were the cause of the accident and the plain — 678 — tiff’s injuries, then their verdict will be for the defendant,” etc. By this instruction the jury was required to find that defendant was guilty of one or more or all of the acts of negligence charged before it could find for plaintiff. The instruction confined the jury to the specific acts of negligence charged. This was all the law required. If the refused instruction is the law, then the proper way to administer it would be to require the plaintiff, after his evidence is all in, to elect upon which one of the specific allegations of negligence he would rely. This can not be done even though the several specific acts of one kind of negligence should be set forth in separate and distinct counts. The jury, after listening to the evidence, the reading of the instructions and comments thereon by the attorneys in their arguments, on retiring to consider the verdict, is generally prepared to take a ballot. Now suppose the refused instruction should have been given and. the jury on its retirement had taken a ballot and that ballot showed that twelve voted to find a verdict for the plaintiff for a certain sum. It would have been the duty of the foreman to sign the verdict and return’it into court, and the duty of the court to have received and directed it spread upon its records. Suppose, then, as it would have had the right to do, if- the instruction had been given, the defendant had demanded that the jury be polled on each charge of negligence and each juror should have been required to answer on which of the specific charges of negligence be found his verdict, -and the answers should have shown that neither twelve, .nor nine of the jurors agreed that the defendant was guilty of any one of the specific charges of negligence, should the verdict be set aside? If so, would not this process indirectly require the jury to find a special verdict? We can see it in no other light. A general verdict is all a jury is required to find under our code of civil procedure, — 679 — that is, the jury is required to pronounce generally, not specially, upon all the issues submitted to it in the case in favor of either the plaintiff or defendant. The whole matter in issue is submitted to it and it finds generally on the whole matter as submitted. To require the jury to do more than this would be to require it to do something the law does not require. In Connecticut Life Insurance Co. v. McMurdy, 89 Pa. St. 363, where the questions of fact presented by an issue upon a first count are in some respects different from those involved in the second count, and testimony given under one might not have been competent under the other, the amount which the plaintiff was entitled to recover being the same under both counts, the issues being tried together, a general verdict was held sufficient. We do not think the argument of defendant’s able and ingenious counsel, that if four of the jurors agreed that defendant was guilty of the first act of negligence charged in the petition and not guilty of the second and third acts, and four others believed that it was guilty of the second, but not guilty of the first or third, and if the remaining four believed that it was not guilty of either the first or second but was guilty of the third, then the verdict would be the verdict of four jurors only, is logical. Suppose it should be charged in an indictment that A, on the first day of June, 1897, at the city of.St. Louis, in the State of Missouri, did then and there, with intent to kill B, make a felonious assault upon B with rocks, clubs and guns, and did then and there with such rocks, clubs and guns, feloniously inflict upon the body of B divers mortal wounds, of which mortal wounds B thereafter, to-wit, on the second day of June, 1897, died. Suppose on trial the evidence should show that A did make the assault with rocks, clubs and guns, giving to B divers mortal wounds, now would it be contended that the jury, in order to convict Amust all agree uponwhichone of the divers mortal — 680 — •wounds B died, and agree also on the instrument by which the particular wound of which he died was inflicted, before it could say that A was guilty? If. four of the jurors should believe that the mortal wound of which B died was produced by rocks, and four others that it was inflicted by clubs, and four others shall be-, lieve that B died of a wound inflicted by guns, would A be entitled to acquittal? Most assuredly not. The gravamen of the offense would be the felonious killing of B. The means used to produce death would be but descriptive of the offense, and if B was feloniously killed by any one or more or by all the means described in the indictment, A should be convicted. State v. Blan, 69 Mo. 317. The gist of the offense would be the felonious killing, so here the gist of the action is negligence. The particular acts of commission or omission constituting the negligence are but descriptive of the tort charged and are alleged for the purpose of notifying the defendant of the line of proof that .plaintiff would pursue on the trial to establish the principal fact, to-wit, negligence. What plaintiff was required to prove to establish his cause of action, was negligence, and whether negligence was committed by the acts of omission or commission set forth in the petition was immaterial'to his right of recovery, provided the jury believed from the evidence the defendant was negligent' in one or more, or in all the ways alleged in the petition, and that its negligence was the proximate cause of plaintiff’s injury. And if four of the jurors believed that its negligence was in the non-observance of the speed ordinance, and four others that it was in the non-observance of the vigilant watch ordinance, and the remaining four that it consisted in the running of the car at an excessive and negligent-speed, would,not the twelve find the defendant was negligent as alleged in the petition? The action was based on negligence— not on the way in which it was committed. The specifications were for the defendant’s benefit to notify it of. — 681 — the bounds in which plaintiff would confine his evidence. When the evidence was in, it was then the province of the jury to determine whether or not the principal fact —negligence within the bounds of the petition — had been established, not within one boundary line, or a particular boundary line, but within all of them, generally, not specifically. 4. It is claimed by defendant that the damages are excessive. In view of plaintiff’s evidence tending to show that as a result of the injury he had been reduced from a strong, robust man to a mere physical wreck, had lost the hearing of one ear and is partially deaf in the other, his eyesight greatly impaired and his sense of touch, in a degree, lost, and that his bodily pain and mental anguish have continued from the day of the injury down to the time of the trial and will most likely continue for an indefinite time in the future, we do not think the damages excessive. The judgment is affirmed. All concur. Goode, J., on the ground that the instructions given were sufficiently explicit as to what the jury must find in order to return a verdict for the plaintiff.