Paquin v. St. Louis & Suburban Railway Co. , 90 Mo. App. 118 ( 1901 )

BLAND, P. J.

On the trial defendant objected to evidence of the amount plaintiff had paid out to others to attend to his business on the following grounds:

“We object to that question as incompetent, irrelevant and immaterial, because the petition is a general claim for damages without any separation as to amounts that may or may not have-been paid out for the employing of doctors to take his place.”

The objection was overruled and an exception saved. The-allegations of damages found in the petition are as follows: “That by reason of the injuries received, as above set forth, and the results which followed therefrom, all of which resulted from the negligence of defendant, as above set forth, plaintiff" has suffered and will suffer very severe pain of body and mind and mental anguish, has lost and will lose much time from his usual occupation, has been unable a great deal of the time to do any thing whatever, has been confined to his bed a part of the time, has incurred and will have to incur much expense for medicines and nursing and medical attention, has been obliged to pay out large sums of money to others to carry on his business, his whole nervous system has been permanently shocked and injured, he has- been permanently injured and weakened, and he has lost and will lose the earnings of his work and labor and the profits of his business.”

It is no where alleged in the petition that plaintiff was a physician or that he was engaged in professional business. His occupation is not stated, nor is it alleged that he suffered pecuniary damages on account of loss of time or earnings. Loss of earnings or of business is a kind of injury which is not regarded as a necessary consequence of a personal injury and must therefore be pleaded to entitle the plaintiff to give evidence of such loss. Mellor v. The Mo. Pac. Ry. Co., 105 Mo. l. c. 464; Gerdes v. Iron and Foundry Co., 124 Mo. l. c. 360; Mason v. St. L, I. M. & S. R’y Co., 75 Mo. App. l. c. 9. When the injury occasions loss of time or of business, the value of the plaintiff’s personal services alone fix- the amount he should recover for loss of time or of business. Mastison v. Mt. Vernon, 58 N. Y. 391; Sedgwick on Damages, sec. 181. Profits in business that are too uncertain and depend on contingencies, that can not be foreseen or provided against are not admitted as elements of damages in personal injury cases, and it was not competent for plaintiff to introduce evidence of what he had paid others to perform the same services in carrying on his business that he would have performed but for the injury. The objection to this character of evidence should have been sustained.

II. The admission of defendant’s rule in respect- to the distance to be observed by a car running behind another was objected to on the ground that the rule was not shown to be in force at the time of the accident. The objection was overruled and an exception saved. The rule was shown to be in force in 1896. It is a rule necessary to the safe and. orderly operation of defendant’s ears, and the presumption is, in the absence of countervailing evidence, that it was in force at the time of the accident. Pope v. The Kansas City Cable Ry. Co., 99 Mo. 400; Cargile et al. v. Wood et al., 63 Mo. 501; Jennings v. Sparkman, 48 Mo. App. 246. If the rule had been abrogated or annulled, the knowledge of this fact was peculiarly in the defendant, and if it did not want to be bound by the rule it should have shown that it was not in force.

III. We do not think the court erred in refusing to take the ease from the jury, on the ground'that the evidence clearly showed that plaintiff was guilty of such contributory negligence as to preclude him from recovering. The fact that persons were permitted by the defendant’s conductors to ride on the bumper when the cars were crowded and were recognized and treated as passengers, was an invitation to the public to take that position on their cars when no other was available. Under the facts in the case plaintiff was a passenger on defendant’s car, invited to take a somewhat perilous position, and took upon himself such risk only as was reasonably apparent. The contention that, after the rear car had run so close to him that he could have almost touched it with his hand, the danger of a collision was so apparent and imminent that to longer continue in his position was such negligence as to preclude a recovery, is not tenable. There is nothing in the evidence to show that the plaintiff knew or could infer that the controller of the rear car was out of order or that the'motorman did not have perfect control of the car; nothing to indicate that the near approach of the car was not from the voluntary act of the motorman, so that, there was, in fact, no warning given to the plaintiff that there was danger of a collision and he had nothing on which to predicate a rational belief that the car and its machinery were not in perfect order, and he had a right to believe the motorman would use a high degree of care in operating the car and that he could and would prevent a collision. Sweeney v. K. C. Cable Ry. Co., 150 Mo. 385. The risk that plaintiff assumed by taking a position on the bumper was that of being thrown off it, not that he would be struck by a car coming up from the rear or be compelled to jump off to avoid such collision.

The instructions submitted to the jury the issue of contributory negligence (of which there was but slight evidence), which issue was found for plaintiff. They submitted, also, the issue of the failure of the defendant to exercise due care, which was also found for the plaintiff, and, taken as a whole, covered the whole case and are absolutely fair to the defendant and announce the law correctly, except as to the question of damages.

Refused instructions “C” and “E” are covered by those given. Refused instruction “D” directed the jury tp find for defendant if they found riding on the bumper was dangerous, and was known to plaintiff to be so, or if he might, by the exercise of ordinary care, have known it. The plaintiff was not injured on account of the fact that he was on the bumper, but on account of the fact that he was compelled to jump from the bumper to avoid a collision. The obvious risk in riding on the bumper was not that the car would be run into by another car, and the instruction was properly refused.

Eor error in permitting a recovery for the amount plaintiff paid to other physicians to attend to his business during his confinement, the judgment will be reversed and cause remanded, unless plaintiff within ten days remit two hundred and seventy dollars of his judgment. If the remittitur be entered in this court, within ten days the judgment will be affirmed.

Goode, concurs; Barclay, J., not sitting, having been of counsel in the circuit court.