Bertram v. Peoples Railway Co.

BURGESS, J. This is an action for damages for personal injuries alleged to have been sustained by plaintiff while a passenger on one of defendant company’s cars, in the city of St. Louis, on June 29, 1893, by reason of the negligence of the employees in charge of the car. The petition alleges that immediately after plaintiff had stepped upon said step (referring to the running board of the — 643 — grip car), and before he had time and opportunity to take a. seat in said grip car, as aforesaid, defendant’s agents and servants operating said train, without notice or warning to plaintiff, and while he was turning to take a seat in said car, carelessly, negligently and violently started said train with a sudden and violent lurch, thereby throwing plaintiff’s body out somewhat from said car, and thereby causing it tO' come into violent contact with a wagon standing close up to defendant’s said track along which said train was being operated, and on the west side of said Fourth street, and south of the south line of said Pine street. “Plaintiff further states that his face was turned from said wagon, and that he did not and could not see it. That said wagon was in full and plain view of defendant’s agents and servants in charge of said train, and that they saw said wagon, or by the exercise of reasonable care and diligence might have seen it before they started said train, as aforesaid. That plaintiff when he stepped upon the step of said grip car, as aforesaid, was in full and plain view of defendant’s agents and servants in charge of said train, and that they saw and knew, or by the exercise of ordinary care and diligence could have seen and known that plaintiff had not, and could not have seated himself in said grip oar, when they started the said train as aforesaid; and that defendant’s agents and servants in charge of said train knew, or by the exercise of reasonable care and diligence, could have known that their careless, negligent and wrongful act in starting said train as aforesaid, while plaintiff was standing on said step, and before he had had an opportunity to seat himself, would bring his body in contact with said wagon.” The defenses were a general denial and contributory negligence. Plaintiff was a witness in his own behalf, and testified that he would he sixty-eight years old in 189Y; that on the morning of June 29, 1893, he started out from his home in — 644 — North St. Louis to visit his daughter, who lived near Lafayette Park; that after taking a car down town, he went to the southwest corner of Fourth and Pine streets to take a south bound car of defendant company, which was to take him out to where his daughter lived; that defendant operated two tracks on Fouxih street, south-bound car’s running along the west track, and north-bound cars along the east track; that the new Planters Hotel -had just been erected on the southwest corner of Fourth and Pine streets and was not yet, finished, and that there was a stack of bricks on Fourth street, in front of the hotel, extending from the eux’b close up to the west rail of the west track of defendant and north to within a.few feet of the crossing, and being about twenty feet high and from fifteen to twenty feet long. Witness further testified that when he had barely gotten to the comer above mentioned one of defendant’s trains, consisting of a grip car and trailer, came along, going in a southerly direction, 'and that he signalled it to stop; ’that the train stopped, with the rear end of the front (or gx*ip) car opposite to where witness was standing; that the gripman was at the time at his post, in the middle of the grip-car, and that the conductor was on the east side of the front platform of the trailer, about seven or eight feet from witness; that witness then got upon the rear end of the running board, the board running along the side of the grip oar, and caught hold of the upright opposite the last seat, which was occupied by a man whom he afterwards learned to be Mr.' H. Mi Pollard; that'immediately after doing this and while he was catching hold of the upright, in fx’ont of Mr. Pollard, with his right hand, with a view of getting into the last seat but one, the cars started up violently and with a jerk, and witness, having let go his hold of the upright opposite the last seat and being in the act of stepping into the last seat but one, was struck on the hand by the rear end of a wagon which was standing near defendant’s track, south of, and concealed by — 645 — the stack of bricks above referred to, and thrown “all in a heap up against the back of the seat that (he) was getting into,” and against Mr. Pollard; that he was unconscious for a few moments thereafter; that the last thing he remembered before being struck was the conductor’s pulling the bell-rope to signal the gripman to start; that the next thing he knew he was about to be carried into a drug store; that he “begged to be left in the position he was in,” as he “could not be touched.” That he did not remember any one else’s getting on the train on the corner at which he boarded it. That witness, remaining on the grip car at his own request, rode out as far as Oastleman avenue, a distance of three or four miles from Eourth and Pine streets; that he got off there and sat down “in the gutter” until the same cars came back from the terminus of the road; that he does not remember whether any other cars passed him in the meantime; that the train he went out on stopped when it got opposite him, going back, and that he boarded it and rode back to the corner of Eourth and Pine streets; and that he was assisted onto the car he came from North St. Louis on and rode back to his home, arriving there about two o’clock p. m.; that the accident had occurred at ten o’clock in the morning. That he was put to bed when he got home, and that in the evening Dr. Lutz was telephoned for, but that Dr. Lutz did not call on him until 2 o’clock p. m. on the day after the 'accident; that Dr. Lutz had been recommended to him by the conductor of the cars on which the accident happened, because he was defendant company’s physician, and would therefore be cheaper; that witness remained in bed about two months as a result of the injuries received, and that Dr. Lutz attended him for the first two weeks of that time; calling on him' once a day during the first week; that Dr. Lutz found some of witness’s ribs fractured, and bandaged him, and that witness expectorated blood, “more or less,” for about six weeks after the accident; that witness consulted three other physicians after Dr. Lutz had ceased calling, making two visits — 646 — to one of them, Ur. Garlock; that during the time of hi? illness witness’s wife nursed him. That before the accident he was in better health than he had been in his life, and that his physical condition was very good. That since the time of the accident his whole nervous system was wrecked from the shock and injury inflicted upon him by defendant. That for six months after the accident he had such excruciating pains in his right side, that he could not lie on that side at all, and that at the time of trial, two and one-half years after the accident, he had pains on both sides, mostly on the left side, indicating the region of the short ribs, and had been and was wholly unable to do anything at all. Witness further testified that he found a legal card of Mr. U. M. Pollard in his pocket when he reached home, and that he went to see that gentleman as soon as he was able to go out, and directed him to write to defendant company as his (witness’s) attorney. In answer to a question as to his occupation, witness then testified that- he sold buggy stock at the corner of Fourth street and Chouteau avenue before the accident, and explained that by buggy stock he meant “buggies, carriages, phaetons and all such things as that,” and on a question by the court he added to this “horses, harness and whips.” On objection of defendant, witness was not allowed to testify as to the net income from this business, as he had alleged in his petition that he had been engaged in the business of buying and selling “horses and mules,” and plaintiff thereupon asked leave to amend his petition in that particular, but, on the objection of defendant, withdrew the application. Witness was not able to state what his profits from dealing in horses prior to the time of the accident had been; he had previously testified that he had had no occupation since the time of the accident. As to his physical condition, witness said that he had been in good health before, but was “just-like a complete wreck, not able to do anything,” and had pains in his left side after the accident. — 647 — Mr. H. M. Pollard, testified that he is an attorney-at-law; that he was on the grip-car of defendant company on which plaintiff was injured at the time such injury occurred, and that he occupied the last seat or the last seat but one on the west side of the car; that he saw plaintiff board the car at the corner of Fourth and Pine on the day mentioned; that he did not remember whether the car came to a full stop, but that he believed it did not; that plaintiff got on the running board, right against and a little to the rear of where witness was sitting, and before he had had time to take his seat, the car started up suddenly and he was struck by a wagon and “thrown back right against” witness, witness reaching out his arm and keeping him from falling; that the wagon which struck plaintiff was the first of two or three brick wagons which were standing just south of a large'pile of bricks which extended so close to the tracks as to1 leave barely room enough for cars to pass; that the length of the brick pile was probably the length of the car; that plaintiff got on the car very close to the brick pile, and that there was no wagon north of the brick pile, -between it and the crossing; that the car stopped instantly after plaintiff was struck, and thar. the conductor immediately came to plaintiff’s side; that witness left the car at Fourteenth and Chouteau avenue, and that he does not remember, but he may have put his card in plaintiff’s pocket; that he wrote one or two letters to- defendant’s manager, Mr. Mahoney, at the request of plaintiff and as his attorney, a short time after the accident, but that when he found the matter could not be amicably -settled, he advised plaintiff to employ Mr. Mott as counsel, because he knew that he (witness) would have to testify for plaintiff; that witness and Mr. Mott had been partners at one time, and that they still had offices next to each other; that witness believed plaintiff had sent his wife or a note by some one down to his (witness’s) office, requesting him to write to defendant company before plaintiff himself came to see him. — 648 — John Mahoney, a witness for plaintiff, testified that he was the superintendent of defendant company in June, 1893, and still occupied that position at the time of the trial; that he had been with the company from 1816 to 1886, and from 1890 to 1896, sixteen years in all; that his duties were to oversee the road generally, since it had been changed to a cable road in 1890; that he had been with the Citizens Railway Company in the same capacity for two years prior to 1890, and had had a great deal of experience in the handling of cable cars. Witness then testified that there is an incline from the center of Eonrth and Pine streets to the center of Eourth and Chestnut streets, just one block south, tbe latter point being about four feet higher than the former; that a car is bound to start gradually on an up-grade, the tendency of the car being to roll backwards as soon as tbe brake is released, and it taking* twice the time to get a firm hold on the grip that it would take on a down-grade; that a jerk would only he experienced on a down-grade, where the car would acquire a momentum of its own as soon as the brake was released and would respond almost immediately to the action of the grip on the rope; that it would take longer to get a firm hold on an up-grade, as several feet of cable would pass through the dies of the grip before this could be accomplished, and that, therefore, the steeper the up-grade, the slower and more gradual would be the start; that the car would never start as fast as the rope; that the cable rope wore out in course of time from tbe friction of the dies. It was hereupon admitted by defendant that it was a corporation engaged in the business of carrying passengers for hire in the city of St. Louis along Eourth street, and that the point in question was a part of its track at that time. Plaintiff then rested. John I. Moore, a witness for defendant, testified that he lived at 3825 Garfield avenue and that he was in business for himself as a huckster; that be bad been a conductor in de — 649 — fendant’s employ for about seven years prior to April, 1896, and that be was the conductor in charge of the train on which plaintiff was injured on June 29, 1893; that the accident in which plaintiff was injured occurred about 9:20 o’clock in the morning of that day; that he remembers plaintiff’s face; that witness was standing about the middle of the running-board on the west side of the trailer, which was an open car; that he first noticed plaintiff standing on the; sidewalk at the southwest corner of Eourth and Pine streets, signaling for the cars to stop; that the ears stopped and plaintiff stepped on the running-board and from there onto the platform of the grip car, standing in the space between the last seat on the west side, occupied by Mr. Pollard and the dash-board, and leaning against the dash-board with his face to the south; that plaintiff was in that position when the car started up again; that two lady passengers came over from the northwest corner of Eourth and Pine streets and got on the trailer which was on the south, crossing, and a boy with a basket ran over from the east side of Eourth street and also got on the trailer, while the cars were stopping; that as soon as these passengers were all aboard the car started up again; that the car started “nice and smooth;” that plaintiff remained in his position against the dash-board until the brick pile and a brick wagon just south of it had been passed, and that plaintiff then stepped down onto the running board, holding onto a standard with his left hand, and was struck by a second brick wagon standing about eighteen feet south of the first, and thrown down onto the running board; that witness ran to him immediately while the gripman had stopped the car, and Mr. Pollard had helped plaintiff up; that the car had gone about thirty-five or forty feet from where plaintiff got on when he was struck, and about four feet after he started to get onto the running board; and that the car was stopped about two or three feet from where the accident occurred; that plaintiff had been on the rear end of the car about fifteen — 650 — seconds before trying to get down; that plaintiff asked to be left on the car because he was suffering too much, and that he was placed on the rear seat of the grip, Mr. Pollard changing from that to the one in front of it; that Mr. Pollard rode as far as Fourteenth and Chouteau, and before getting off the car put his card in plaintiff’s pocket; that plaintiff rode as far as Oastleman avenue, about four miles out; and that witness could see him walking west on Oastleman avenue for at least half a block; that the cars then went to' the end of the line, about three-fourths of a mile further, waited there about four minutes, and then came back; that when they got ■back to Oastleman avenue, plaintiff was there, waiting and made a motion for the cars to stop; that they stopped and took him on and brought him back to Fourth and Pine streets, where he got off and “walked up the street;” that about three cars must have passed plaintiff on Oastleman avenue before witness’s cars came back; that witness tried but could not obtain the names of the ladies who got on at the same time plaintiff did; that the cable on that day was running at a speed of about eight miles an hour, and that it usually took ■about twelve feet to acquire full speed. Dominick Carr, a witness for defendant, testified that he was in business for himself as huckster in the city of East St. Louis, Illinois; that he had been in the employ of defendant company for eight year's prior to and up to April 1, 1896, two years as driver and the last six years as gripman, and that he was in charge of defendant’s grip ear on which plaintiff was injured on June 29, 1893’; that he saw plaintiff on that day standing on the southwest corner of Fourth and Pine streets, signaling to the cars -to stop; that two ladies had signaled witness as he was passing the northwest comer, and that they came across Pine street after he stopped; that plaintiff walked toward the grip-car and boarded it; that witness; noticing a wagon close to the track ahead, looked back to the conductor, after getting the first signal, for the signal that everything — 651 — was all right, and as he looked back noticed plaintiff “standing on the hind end of the grip ear with his back towards the dashboard;” that, the conductor gave him the signal to go ahead from the running board on tire side of the trailer; that he thereupon started slowly; that when he got the second signal he was about seven feet north of the brick pile herein-before mentioned, and that when he bad passed the brick pile and a wagon standing just south of it — a distance of about thirteen or fourteen feet from the stopping place' — he heard a shout and immediately stopped the train; that, upon looking around, he found plaintiff leaning back on the running board of the grip car, supported by Mr. Pollard and the conductor, and that he then saw plaintiff placed in a seat, -and on reaching Market street heard him beg to be left on the car; that plaintiff rode out to Castleman avenue on the car and got off there; and that he saw. plaintiff walk west on that street; that they then went to the end of the road and came back to Castleman avenue about ten minutes after, and that he saw plaintiff there signalling to get on; that they took him on board and that he rode back down town with them; but that witness did not know where he got off. At the close of plaintiff’s evidence, and again at the close of all the evidence, defendant interposed a demurrer to the evidence which was refused, and it duly excepted. The court then instructed the jury in behalf of plaintiff, and over the objection and exception of defendant, as follows : 1. The court instructs the jury that in determining whether defendant’s agent or agents in charge of its said train did or did not stop same for a reasonable length of time to permit plaintiff to take a seat upon the grip car, as mentioned in the other instructions given by the court, you should consider the evident age and physical condition of plaintiff, as apparent to defendant’s agent or agents in charge of said train at the time plaintiff boarded said grip car. — 652 — 2. The court instructs the jury that, although when the occurrence in question -happened, the plaintiff had not paid his fare, yet if the jury believe that he went on the car as a passenger, and with the intention of paying his fare when called on by defendant’s conductor in charge of said train to do so, then you are instructed that plaintiff was a passenger, and defendant owed him the same duties as if in fact he had paid his fare at said time. 3. The court instructs you that if you believe from the evidence that on the 29th of June, 1893, defendant was operating a system of railway tracks along Fourth street, in the city of St. Louis, and that it started a train of cars in a southerly direction along and on said tracks; and if you believe from the evidence that plaintiff, intending to become a passenger on said train, was standing on the southern line of Pine street at its intersection with said Fourth street, and that he signalled defendant’s agent or agents in charge of said train -to stop the same -on its tracks at the southern line of said intersection of said streets; and if you believe from the evidence that said agent or agents in response to such signal did stop said train (or slacked its speed to a slow rate, at said point, as if it was going to be stopped) for the purpose of permitting plaintiff to get on the same, and if you believe from the evidence that plaintiff was then and there exercising the same care as is customarily exercised by persons of ordinary prudence under'like circumstances, and that he stepped upon the running board of the grip car of said train, for the purpose of taking a seat in said car; and that the agent or agents in charge of said train knew, or by the exercise of reasonable care might have known, that plaintiff was then and there standing upon said running board (if you believe from the evidence such to be the fact), 'but that nevertheless, said agent or -agents suddenly and violently started the car forward and brought plaintiff’s body in contact with a wagon standing alongside of said track, and injured plaintiff, you will — 653 — find for plaintiff, and assess Ms damages as specified in the other instructions given by the court. 4. ' If under the other instructions, you decide to find for plaintiff, you -will assess Ms damages at such sum as you believe from the evidence will be a reasonable compensation to Mm for the bodily and mental pain or suffering be has sustained in consequence of said injuries, as well as for any isuch permanent disability to labor as you may find from tbe evidence be has suffered by reason thereof. If, under tbe other instructions, you decide to find for defendant your verdict need merely state that you find for defendant on tbe issues joined. At tbe request of defendant the court instructed tbe jury as follows: 1st. Or if, from tbe evidence, tbe jury believe that plaintiff bad fully boarded tbe car, and while said car was in motion, be stepped down again upon tbe running board of tbe car, and you also believe from the evidence that, with tbe car still in motion, tbe plaintiff then attempted to walk along upon said running board’and thereby brought bis body in contact with tbe wagon, then your verdict should be for defendant company. 2d. And if, from thq, evidence, tbe jury also believe that plaintiff just before or at tbe time when be was getting on the car, saw, or by tbe exercise of ordinary care, could have seen tbe wagon, and by tbe exercise of tbe same degree of care on Ms part could have so placed himself on tbe car or tbe running board thereof that bis body would not have come in contact with said wagon, then your verdict should be for defendant company. 3d. The court also instructs tbe jury that it was the duty of plaintiff to exercise ordinary care for bis safety, and if, from the evidence, tbe jury believe that plaintiff, on getting aiboard of defendant’s car, by exercising the car aforesaid, could have placed himself in a safe position on tbe car, — 654 — but failed to do so, and thereby contributed directly to his being injured, then your verdict should be in favor of defendant company. The jury returned a verdict in favor of plaintiff, assessing his damages -at three thousand five hundred dollars, for which judgment Avas rendered. After unsuccessful motion for a neAV trial defendant appeals. There are but íavo questions presented for review by this appeal and they are Avith respect to the correctness of the first instruction given on behalf of plaintiff, and the excessiveness of the verdict. It is insisted that the instruction was erroneous because it assumed that plaintiff Avas an old man at the time of the accident. Where the evidence is conflicting as to any material fact in litigation, an instruction AAdiich assumes the existence of such fact is erroneous, but where there is an assumption of -a fact in an instruction, as proved, when the evidence is all one way as to such fact it is not reversible error for the instruction to assume it. [First Nat. Bank v. Hatch, 98 Mo. 376; Walker v. City of Kansas, 99 Mo. 647; State v. Moore, 101 Mo. 316.] The accident happened on June 29, 1893, and plaintiff testified that he would be sixty-eight years old in 1897. There Avas no other verbal testimony in respect to his age. It was not a controverted fact, and eAren if the instruction can be construed as assuming that he was an old man at the time of the accident, which was manifestly so, it was not reversible error. This instruction is -also criticised upon the ground that it commented on the fact of plaintiff’s -age, and unduly directed the attention of the jury to that, fact by singling it out. The instruction Avas not, we think, a comment on the evidence, as it merely told the jury that in determining whether defendant’s agents in charge of its train did or did not stop the same for a reasonable length of time to permit plaintiff to take a — 655 — seat upon the grip car, they should consider his evident age and physical condition, without any suggestion or intimation as to the weight to be given .to these facts, or what importance should be attached to them, and was not objectionable upon these grounds. The question then is, was the instruction vicious upon the ground that it improperly directed the attention of the jury to the fact of plaintiff’s advanced age. An instruction which singles out and gives undue prominence to isolated parts of the evidence is not permissible, and should not be given. [Chouquette v. Barada, 28 Mo. 491; St. L. K. & N. W. R’y Co. v. St. L. Union Stock Yards, 120 Mo. 541.] This however is not an arbitrary rule, but like almost all other rules, there are exceptions to it. For instance, if the fact to which attention is unduly called, is immaterial to the issues involved, the judgment should not be reversed because of that fact. Or if it appears that the party complaining of the instruction could not have been prejudiced thereby the judgment should not be reversed. Plaintiff’s age was not a fact upon which the case turned, or that could have affected the result, whatever his ‘age may have been and we are unable to see how defendant’s rights were in any way prejudiced by the instruction. By section 2303, Revised Statutes 1889, this court is prohibited from reversing the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error and materially affecting the merits of the action. Counsel for defendant in their brief say that under the physical conditions obtaining at the time the injuries complained of were received, plaintiff had ample time to seat himself before the cars reached the wagon by which he was struck; at the same time they admit that the testimony as to the cause of the injuries of which plaintiff complains, was exceedingly conflicting. This question was one of the issues presented by the instructions to which no objections are made, — 656 — save and except plaintiff’s first, and the jury found against defendant’s contention. Nor is it claimed that the verdict was not authorized by the evidence, except as to the amount, which defendant insists was excessive, and manifestly the result of prejudice on the part of the jury, and greatly in excess of any sum which the evidence justified, and that the judgment ought to be reversed upon that ground. That this court will reverse the judgment of a trial court based upon the verdict of a jury which is manifestly the result of prejudice, or passion, there can be no doubt, but there is nothing in this record to sustain this assertion. Clearly the amount of the verdict itself, under the circumstances attending the injury, and its consequent results would not justify such an imputation upon the jury. The only question remaining is with respect to the amount of damages allowed by the jury, whether or not excessive, and if so if to such an extent as to justify a reversal upon that ground. Plaintiff was the only witness who testified as to the nature and extent of his injuries, pain and suffering, and, according to his testimony which was not contradicted, he remained in bed continuously for about two months after-wards; that his hand was bruised and his thumb dislocated; that his ribs were fractured; that he expectorated blood quite freely at first for about six weeks, and that for six months after the accident he was unable to sleep on his right side because of the pain it gave him to- do so; that at the time of the trial, two and one-half years after the accident, he was a nervous wreck, unable to do work of any kind, and that he then was suffering with pains on both sides; that his skin on his right sidé was mottled in appearance, and that previous to the time of the accident he was in good health for a man of his age, and was suffering no infirmity. While plaintiff’s injuries were serious the damages assessed seem large, but the judge who tried the case gave the verdict his sanction, and, under such circumstances, the verdict is not — 657 — so excessive as to justify us in reversing the judgment upon that ground alone. We therefore affirm the judgment. Gantt, G. J., Brace and Valliant, JJ., concur; Sherwood, Marshall and Robinson, JJ., dissent.