Edwards v. St. Louis, Kennett & Southern Railway Co.

BOND, J. The plaintiff filed the following statement in a justice’s court: “The plaintiff states that on or about the 2nd day of July, 1897, the defendant, a corporation under the laws of the State of Missouri, owning and operating a line of railroad between Campbell, in Dunklin county, and Caruthersville, in Pemiscot county, State of Missouri, did injury to the plaintiff as follows: That is to say, the plaintiff had purchased a ticket over the road of defendant, from Pascóla, to Hayti, all in Pemiscot county, State of Missouri; after purchasing said ticket, the plaintiff started from the platform of the depot at Pascóla to the train then standing on the track near said depot; while plaintiff was passing an engine of said defendant, then standing about twenty feet from said plat [259] form, the engineer of said engine turned the steam into or out of some part of said engine, and the plaintiff was by said steam badly scalded upon the right forearm and the right side. By means of said wrongful act of said defendant, plaintiff says that he was damaged to the amount of two hundred and fifty dollars, for which he asks judgment.” The -answer was a general denial, and a plea of contributory negligence. There was a trial and judgment before the justice and an appeal to the circuit court, where plaintiff recovered $150, from which this appeal is taken by the defendant. pleading. The conclusion of the court’s instruction for plaintiff is to wit: “If you find for the plaintiff, you are instructed that he is entitled to recover such damages -as you believe from the evidence are the natural and probable results of the injury, not exceeding the amount sued for, and you are authorized to consider the physical pain and suffering, and the loss of time and wages, which were the direct result of such injury.” It will be observed that this instruction submits as one of the elements of plaintiff’s damages his “loss of time and wages.” This was erroneous under the allegations of the foregoing statement of plaintiff’s cause of action, since that does not either directly or inferentially plead such damages. While the above statement is sufficient to support a recovery for general damages, it did not warrant the consideration of any other by the jury, hence the court erred in submitting to the jury the question as to plaintiff’s damages arising from “loss of time and wages.” Slaughter v. Railway, 116 Mo. 269, and cases cited; Mason v. Railway, 75 Mo. App. loc. cit. 9. The judgment herein is reversed and the cause remanded. All concur.