Devlin v. City of St. Louis

158 S.W. 346, 252 Mo. 203, 1913 Mo. LEXIS 111

Opinion

OPINION.

I.

BOND, J.

(After stating the facts as above.)--

The trial court did not err in refusing to declare, ■as a matter of law, that plaintiff was precluded from ■contributory .Negligence. any recovery by her contributory negligence. There was ample evidence .that ,. ... the sidewalk m question was permitted to exist in an unreasonably defective condition at the place of the accident, and this had continued for so long that the defendant was chargeable with notice thereof. But there was no evidence proving- that it was so imminently dangerous that no person of ordinary care and prudence would use it as a pathway. Hence we overrule the assignment of error as to the submission of the case to the jury.

II.

In the subdivision of the instructions complained of, the jury were directed to consider plaintiff’s right outrunti:°ns: Evidence. to recover $2000 “for loss of time and lability to labor.” There was no evidence showing any loss of time by the plaintiff beyond the time she employed a helper at $1.35 per day for three weeks and occasionally afterwards, for one day a week. The aggregate of the amount thus expended did not exceed $175. Beyond this outlay, there is no evidence of plaintiff’s loss either of time or ability to labor, yet by the language of the instructions, the jury were told to look to both as elements of damage. This was confusing and misleading, for there was no. proof in this record of damages for “inability to labor,” as distinct from those caused by loss of time; since plaintiff wholly failed to prove any damages beyond what she sustained, while employing a substitute to do her work. [Davidson v. Transit Co., 211 Mo. 1. c. 355.]

Under the facts in this case, the verdict seems very large if not excessive. It is difficult to account for the size of the recovery on any other theory than that the jury intended to' compensate the plaintiff for a permanent disability to perform her usual work,, which this instruction was broad enough to permit, although there was no basis in the proof for such finding.

An instruction on facts not proven, which is followed by a verdict substantially larger than the case appears to warrant, is necessarily reversible error. The rule might be otherwise if the record demonstrated that the verdict was not materially enhanced,, for then the error would he harmless, as was shown in a recent case. [Shinn v. Railroad, 248 Mo. 173.]

We conclude that there was error in the portion of the instruction complained of, since it permitted a recovery for a continuing and permanent “inability to labor” beyond the time during which plaintiff’s, work was performed by another person.. We think the verdict in this case was influenced in a substantial degree by this instruction, and for that reason the judgment is reversed and the cause remanded.

Woodson, P. J., Lamm and Graves, JJ., concur.