Halley v. St. Joseph Light, Heat & Power Co.

JOHNSON, J. — Action to recover damages for personal injury alleged to have been caused by the negligence of defendant. Plaintiff was a passenger on one of the cars in operation upon the “Messanie Street” line of defendant’s street railway system in St. Joseph and received her injury in jumping from the car while under the impulse of fear caused by the apparent imminence of a collision of that car with another approaching upon the same track from the opposite direction. No point is made that the evidence of defendant’s negligence was not sufficient to take that issue to the jury, nor is any criticism directed to the instructions .under which the issues of negligence and contributory negligence were submitted and, therefore, we will not concern ourselves with that branch of the case. A reversal of the judgment recovered by plaintiff is urged by defendant upon two grounds: First, error is claimed in plaintiff’s instruction upon the measure of damage in the direction relating to future pain and suffering, Which permits the jury to include in the recoverable damages that resulting from “such bodily pain and mental suffering as you may believe such injuries may hereafter cause her;” and, second, it is earnestly insisted that the verdict is excessive to a degree justifying our interference. Relative to the first point, the use of the word “may” in the connection here appearing has been condemned by many appellate courts and text-writers. [Ballard v. Kansas City, 110 Mo. App. 395; Schwend v. Transit Co., 105 Mo. App. 537; Smiley v. Railroad, 160 Mo. 629; Chilton v. St. Joseph, 143 Mo. 192; Strohm v. [655] Railroad, 96 N. Y. 306; Watson on Damages, sec. 302, et seq.; Joyce on Damages, sec. 244; 3 Sutherland on Damages, p. 262; White v. Railroad, 61 Wis. 536.] All authorities agree upon the principle to be followed in the assessment of damages on account of future pain, suffering and loss. Damages are allowed for consequences that are reasonably certain to'follow the injury, while those are excluded that depend upon contingent, speculative or merely probable results. The divergence of opinion over the use of the word “may,” as here employed, does not involve the rule itself, but relates to the definition of the word and its efficacy to correctly express the true rule. Many authorities, following the lexicographers, hold that, as the chief office of the word , when used as an auxiliary verb is to convey the idea of uncertainty, its use in an instruction as in the one before us permits a recovery, not only for absolutely and reasonably certain consequences, but for the merely probable and barely possible, and thus presents the very opposite of the principle, which all agree should control. The Supreme Court, in the recent case of Reynolds v. Transit Co., 189 Mo. 408, 88 S. W.50, in the consideration of this subject, reaffirmed the general principle here stated as controlling the assessment of damages, but, after deprecating the employment of the word “may” for the purpose under discussion, held that it should be construed as defining the proper rule. We are constrained to follow this, the latest utterance of the Supreme Court, notAvithstanding it is at variance with the view we expressed in the case of Ballard v. Kansas City, supra; Robertson v. Hammond Packing Co., 115 Mo, App. 520. The verdict of the jury was for one thousand dollars and the learned trial judge, who had the parties and witnesses before him, refused to pronounce the damages awarded excessive. The trial occurred more than four months after the. injury was received and, according to the evidence introduced by plaintiff, she was then suf [656] fering from its results to the extent of being incapacitated from following her vocation. When injured, she was employed as a stenographer at a salary of fifty dollars per month. In addition to the loss of wages, she endured much physical pain from which she had not been wholly relieved, and it was made apparent that she would suffer future pain and incapacity. Considering the character of her injuries fis disclosed by the record, the verdict seems large, but we do not feel justified in saying that its amount proclaims it to be the work of passion or prejudice in the triers of fact, as we would have to do should we hold it to be excessive. There appears to be room here for an honest and intelligent difference of opinion and, when this is the case, interference with a judgment upon this ground is an invasion by the appellate court of the province of the jury and trial judge. The judgment is affirmed. All concur.