Hawes v. Kansas City Stock-Yards Co.

Barclay, J. This action is to recover damages for personal injuries sustained by plaintiff in consequence of alleged negligence of defendant as proprietor of large stock-yards in Kansas City. Defendant denied all fault and charged contributory negligence upon plaintiff, which the latter denied in his reply. For the purposes of this appeal it will not be necessary, in the view we take of it, to give more than a bare outline of the case as presented by the record. Plaintiff’s evidence tends to show that he was in defendant's employ about its sale stables and was directed to ride one of its horses for the purpose of exhibiting it to an intending purchaser. The animal was strong and not fully trained. While plaintiff was thus riding it, the defendant’s vice-principal negligently struck it with a whip, in consequence of which it got beyond plaintiff’s control, ran away and then fell, throwing plaintiff off, injuring him severely and permanently. [66] The petition alleged that plaintiff was dependent on his manual labor for a livelihood and that, in consequence of the said injury, he had been wholly disabled from performing such labor, and had suffered great bodily anguish and been put to great expense in seeking to be cured, etc., in the sum of $20,000. The evidence on the issue of his damages tended to prove that his leg had been broken below the knee and his right shoulder bruised and that he was hurt inwardly; that his spine was injured by concussion and that he had difficulty in discharging the contents of his bladder and bowels ; that he was confined to bed some six weeks after the accident and had been laid up about half the time since; that at that time he was receiving $40 a month as wages ; that the injury to the spine was probably permanent, and that he was disabled from labor and would probably remain so. The cause was tried with a jury, and a verdict and judgment for plaintiff for $9,000 followed, from which defendant appealed in due course. The only instruction by the court touching the proper amount of damages to be awarded in event of a verdict for plaintiff was that they then should find for him in such sum as they believed would “ compensate him for his injuries, so received, not exceeding the sum of $20,000.” This declaration totally failed to inform the jury of the proper elements of compensation within the meaning of the law. It gave them a roving commission to conjecture the consequences of plaintiff’s injuries, however remote, and to apply such measure of compensation therefor as might to them seem appropriate, without reference to the legal rules for determining the limits of such compensation. What are the proper elements of damage, within the meaning of the law, in a case of this kind, is a question for the court; but the ascertainment of the proper sum to be awarded for them is a question [67] for the jury. We think the instruction in this case erroneous. There being material error in giving it, a new trial should follow, unless it can be affirmatively shown that it was harmless. The verdict rendered was for $9,000, and no reason has been suggested toward showing that the instruction did not have a bearing on the result. We, therefore, must consider the action of the trial court in the particular mentioned as necessarily prejudicial to the defendant. Counsel for plaintiff appear to suppose that the instruction mentioned finds support in former decisions of this court; but we do not regard the cases cited as approving it. In Waldhier v. Railroad (1885), 87 Mo. 37, the trial court gave this instruction, viz.: “5. The court instructs the jury that if you find for the plaintiff you should assess his damages at such a sum as you may believe him entitled to, but in an amount not exceeding $50,000. If your verdict is for the plaintiff, in estimating his damages you should take into consideration the nature and extent of his injuries and the pain and suffering, if any, occasioned thereby.” On appeal this court said (referring thereto): ‘£ The fifth instruction, which relates to the measure of damages, is not carefully worded. The latter part does say that in estimating the damages the jurors should take into consideration the nature and extent of the plaintiff’s injuries and the pain and suffering occasioned thereby, While the instruction does not in express terms confine the compensation to such matters, still we think that is its fair interpretation, and, in view of the facts of this case, it could have been scarcely understood in any other way.” The printed report of this part of that opinion erroneously interpolates a “not” before the word “say” m the second sentence; but, as the original opinion [68] reads, it affords no precedent for the instruction before us now. It clearly intimates that, but for the express mention of the proper subjects for consideration by the jury in estimating plaintiff’s damages, the instruction ■ would have been bad; and that, even as it stood, it was no safe model in other cases. In Tetherow v. Railroad (1888), 98 Mo. 74; 11 S. W. Rep. 310 ; 14 Am. St. Rep. 617, the circuit court told the jury that if they found for plaintiff they might, in their verdict, “give her such damages, not exceeding $5,000, as you may deem fair and just under the evidence in the case with reference to the necessary injury resulting to her from the death of her husband,” which this court approved. But there the jury, in estimating the damages, were expressly confined to the evidence before them, and the measure of recovery was stated in the very terms of the statute (R. S. 1889, sec. 4427, formerly section 2123, R. S. 1879). That form of instruction in actions of that nature had been, by clear implication, approved in prior decisions (Smith v. Railroad (1887), 92 Mo. 359 ; Stoher v. Railroad (1887), 91 Mo. 509), and we considered it proper to adhere to them as expressing the general current of opinion on the subject. City of Chicago v. Major, 18 Ill. 349; Railroad v. Keller (1871), 67 Pa. St. 300; Railroad v. Barron (1866), 5 Wall. 90. As a new trial must be granted for the reasons above indicated, and the other points of exceptions are not likely to recur, we need not discuss them. The judgment is reversed and the cause remanded, with the assent of the other judges except Sherwood, O. J., who will state his views separately.