Leach v. St. Louis & San Francisco Railroad

Missouri Court of Appeals

Leach v. St. Louis & San Francisco Railroad

118 S.W. 510, 137 Mo. App. 300, 1909 Mo. App. LEXIS 211

DecidedApril 6, 1909

StatusPublished

This text of 118 S.W. 510 (Leach v. St. Louis & San Francisco Railroad) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Leach v. St. Louis & San Francisco Railroad, 118 S.W. 510, 137 Mo. App. 300, 1909 Mo. App. LEXIS 211 (Mo. Ct. App. 1909).

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Opinion

REYNOLDS, P. J.

(after stating the facts). — We regret that we are compelled to reverse this case on this point but it is too important a point, in cases of this kind, to be overlooked. When the plaintiff insists on damages for loss of time and earnings she must be put to the proof of the value of her time and the amount of her earnings. An instruction submitting to the jury a rule for the estimation of damages which includes in it the element of loss of earnings, when there is no foundation for it, is reversible error. [Wallack v. St. Louis Transit Co., 123 Mo. App. 160, l. c. 167.] This is the only error we discover in the record.

Complaint is made by the appellant, defendant below, of the refusal by the court of the following instruction:

“The court instructs the jury that if you believe and find from the evidence that it was the custom of defendant to draw the coach down to the depot and let the passengers alight, then switch the coach back on the ‘Y’ and do the switching, and after the switching was-completed, to bring the coach back to the depot for passengers to board it, and that this rule was adopted on the date in question, and that the plaintiff boarded defendant’s passenger coach before the switching and before being invited, and before said coach was brought back to the depot after the switching, then the company is not liable, and you will return a verdict for the defendant.”

That instruction was properly refused. In support of it the learned counsel for the appellant advance the proposition that this being a mixed train, part freight, part passenger, the plaintiff, as a passenger on it, assumed the dangers or perils which are necessarily incident to that mode of conveyance, and they cite several cases which are claimed to be in support of this proposition. We do not think that the contention of counsel is correct nor that the cases support them. While passengers carried in a mixed train, that is in a coach attached [304]*304to a freight train are not to expect all the conveniences and comforts that are furnished those riding in regularly made up passenger trains, they are entitled to be carried with as high a degree of safety as is compatible with the management of a “mixed” train.

Complaint is made that the court, in its instruction given at the instance of plaintiff, instructed the jury that if the agents and employees of defendant, “carelessly and negligently caused other cars to be run against and violently strike the coach in which plaintiff was seated, and that in consequence of such collision of cars, she was injured, your verdict should be for plaintiff.” It is complained of this instruction that the terms “carelessly and negligently,” were used without defining what carelessness and negligence consisted of, and in support of this contention reference is made to the case of Magrane v. Railway, 183 Mo. l. c. 132. It was said in that case at that place, that “The only adverse criticism to be passed on those instructions is that they submit to the ■jury the question of negligence of the defendant in the matter without instructing the jury as to what constitutes negligence.” But the court expressly refused to reverse on account of this and it was a mere criticism of verbiage without condemning the body of the instruction itself. Furthermore in the case at bar at the instance of the defendant this instruction was given:

“The court instructs the jury that the mere fact, if it is a fact, that there was a sudden jolt or jar of the cars, which threw the plaintiff from her seat, is not sufficient to constitute negligence, and unless you find from all the evidence in this case that the men in charge of the train were guilty of negligence in making the coupling, or that the machinery or appliances were out of order, which produced the jolt or jar, your verdict must be for the defendant.”

Whatever criticism may be indulged in as to the failure of the court to define the terms “carelessly and [305]*305negligently,” as used in the instruction given at instance of plaintiff was cured by this.

For error in the instruction as to the measure of damages, the judgment must be reversed and the cause remanded for a new trial. It is so ordered,

all concurring.

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REYNOLDS, P. J.

(after stating the facts). — We regret that we are compelled to reverse this case on this point but it is too important a point, in cases of this kind, to be overlooked. When the plaintiff insists on damages for loss of time and earnings she must be put to the proof of the value of her time and the amount of her earnings. An instruction submitting to the jury a rule for the estimation of damages which includes in it the element of loss of earnings, when there is no foundation for it, is reversible error. [Wallack v. St. Louis Transit Co., 123 Mo. App. 160, l. c. 167.] This is the only error we discover in the record.

Complaint is made by the appellant, defendant below, of the refusal by the court of the following instruction:

“The court instructs the jury that if you believe and find from the evidence that it was the custom of defendant to draw the coach down to the depot and let the passengers alight, then switch the coach back on the ‘Y’ and do the switching, and after the switching was-completed, to bring the coach back to the depot for passengers to board it, and that this rule was adopted on the date in question, and that the plaintiff boarded defendant’s passenger coach before the switching and before being invited, and before said coach was brought back to the depot after the switching, then the company is not liable, and you will return a verdict for the defendant.”

That instruction was properly refused. In support of it the learned counsel for the appellant advance the proposition that this being a mixed train, part freight, part passenger, the plaintiff, as a passenger on it, assumed the dangers or perils which are necessarily incident to that mode of conveyance, and they cite several cases which are claimed to be in support of this proposition. We do not think that the contention of counsel is correct nor that the cases support them. While passengers carried in a mixed train, that is in a coach attached [304]*304to a freight train are not to expect all the conveniences and comforts that are furnished those riding in regularly made up passenger trains, they are entitled to be carried with as high a degree of safety as is compatible with the management of a “mixed” train.

Complaint is made that the court, in its instruction given at the instance of plaintiff, instructed the jury that if the agents and employees of defendant, “carelessly and negligently caused other cars to be run against and violently strike the coach in which plaintiff was seated, and that in consequence of such collision of cars, she was injured, your verdict should be for plaintiff.” It is complained of this instruction that the terms “carelessly and negligently,” were used without defining what carelessness and negligence consisted of, and in support of this contention reference is made to the case of Magrane v. Railway, 183 Mo. l. c. 132. It was said in that case at that place, that “The only adverse criticism to be passed on those instructions is that they submit to the ■jury the question of negligence of the defendant in the matter without instructing the jury as to what constitutes negligence.” But the court expressly refused to reverse on account of this and it was a mere criticism of verbiage without condemning the body of the instruction itself. Furthermore in the case at bar at the instance of the defendant this instruction was given:

“The court instructs the jury that the mere fact, if it is a fact, that there was a sudden jolt or jar of the cars, which threw the plaintiff from her seat, is not sufficient to constitute negligence, and unless you find from all the evidence in this case that the men in charge of the train were guilty of negligence in making the coupling, or that the machinery or appliances were out of order, which produced the jolt or jar, your verdict must be for the defendant.”

Whatever criticism may be indulged in as to the failure of the court to define the terms “carelessly and [305]*305negligently,” as used in the instruction given at instance of plaintiff was cured by this.

For error in the instruction as to the measure of damages, the judgment must be reversed and the cause remanded for a new trial. It is so ordered,

all concurring.

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118 S.W. 510, 137 Mo. App. 300, 1909 Mo. App. LEXIS 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leach-v-st-louis-san-francisco-railroad-moctapp-1909.

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