Impkamp v. St. Louis Transit Co.

BLAND, P. J.

(after stating the facts). — 1. The demurrer to the evidence is not worthy of discussion. *660 Plaintiff made ont not only a prima facie case but a very strong one, so strong that no sane court would take it away from tbe jury.

2. Tbe refused instruction in respect to contributory negligence was fully covered by tbe one given on tbe same subject for defendant. A thing once said, if-well said, does not need repetition to give it emphasis, nor does a twice told proposition of law make the law more binding on the conscience of the jury.

3. An experienced carman was introduced by the plaintiff and, over the objection of the defendant, in answer to a hypothetical question, stated in what time and space a street car could be stopped. The question did not cover the exact condition of the street and tracknor describe the equipment provided for stopping the car, and, technically speaking, was for this reason objectionable. But if there was any error in permitting the witness to answer the question, the error was nonprejudicial for the reason defendant’s motorman testified that the car could have been stopped in from thirty-five to forty feet and that he stopped it within that distance. Plaintiff’s expert testified the car could have been stopped in from'thirty to thirty-five feet. The difference of five feet between the testimony of these two witnesses is too small to warrant a reversal of the judgment. In addition to this, plaintiff’s evidence shows that he travelled eighty feet with two wheels of his wagon in the track and that the car travelled two hundred and eighty feet while he was in this position. This was certainly space enough to have allowed the motorman, who saw or could have seen plaintiff’s wagon, if he had looked, time to have at least slackened the speed of the car and given plaintiff a minute’s additional time in which to drive off the track.

4. In respect to his injuries and in answer to the question: “Tell how you were hurt,” plaintiff said: “All over my leg, my breast and my knee and my toes and my back all over. I was hurt all over; I am not *661 well to-day yet.” He further testified that after the injury he was confined to his house for over three weeks suffering all the time with his breast and neck, could not get his coat on and could not get up, and that he still felt “bad all the time” in his breast, head and side; that he was sixty-two years old at the time of his injury and was a contractor and builder and earned “ten dollars a day and eight and six” at his avocation. This evidence was objected to as uncertain and specu-lative and plaintiff was asked to restate his earnings.. His answer was, “Sometimes eight or ten dollars a day, or eight or six”’ The same objection was made by the defendant and overruled by the court and exceptions saved. Plaintiff also testified that he could not work any more, that he had tried to work but the effort hurt him and after a little while he had to lie down; that he was nervous and his side hurt him and he had only earned one hundred dollars since his injury; that prior to the injury his health was good.

Dr. Grundmann, his attending physician, testified that he had known plaintiff about fifteen years and prior to his injury his health was fairly good. In respect to plaintiff’s condition immediately after the injury, the doctor testified: “When I came to him I found him lying on a lounge. I examined him and I found a sprained and'bruised condition of the right shoulder. The left side was bruised — the right side, rather, was bruised. He complained about pains in the back, although there seemed to be not so much of a bruise, and pain in his hips, and especially the right one. The leg was somewhat bruised. He suffered a shock — a conditional shock, and he expectorated some blood. That is about the condition I found him in.” The doctor further testified that he attributed the expectoration of blood to injury to the chest walls which likely penetrated into the lung. The witness’s examination proceeded as follows:

“Q. State the extent to which you observed he *662 suffered from the shook and what part of his system was shocked? A. Mainly to the spinal cord and partly the brain, because the eyes had the peculiar look of a shock, somewhat dull and an expression of anguish due to pain.

“ Q. Have you been treating him ever since he was hurt? A. Yes, sir.

“Q. State what his condition has been right along. Give a history of the case. Tell the jury k A. _ He was first confined a while.

“Q. Speak louder k A. And as soon as the bruises seemed to leave him and his shoulder got somewhat better, I ordered him out as soon as he could go; it was summer and I preferred to have him in the fresh air, and for a while, I believed it was for a few months, I can’t state just how long, he seemed to get along very well, but later on I observed that his mind was not in the condition it had been. He is suffering from, sometimes call it .dementia, or, rather, wakefulness, and sometimes his language is not clear, it is incoherent. I think he uses wrong words or expressions. The first time that I went with him to the bank — Jefferson bank —he had put his keys in his pocket; I believe he went in twice or three times and he didn’t know where he had left them — couldn’t find them.

“Judge Talty: I object to that as incompetent.

. “Witness: Since that he' has complained about pain mainly about his—

“Judge Talty: I object to that, about his complaining since then.

“The court: That may stand.

“To which ruling of the court, counsel for the defendant then and there duly excepted.

“Witness: pie is exceedingly nervous; he is in a nervous state; he is different from what he was before.

“Q. Was he that way before he was hurt? A. No, sir.

*663 “Q. State, in yonr judgment, whether the injuries such as you saw he had received from physical observation, were such as would produce pain? A. Yes, sir; he suffers pain.

‘‘Q. Would it produce mental pain; also anxiety? A. Oh, mental anxiety; a shock always brings on anxiety, too.

‘ ‘ Q. What effect does a shock have on the human system? A. That depends on how severe it is.

“Q. What effect did it have on his system? A. It left him in a nervous state. He is not the man that he was.

“Q. Sir? A. He is not the man any more that he has been; it left him in a condition — it is hard to describe and give a definition of shock. These railroad shocks, they leave certain conditions — ■

“Objected to.

“The court: Confine yourself to this case.

“Witness: Well, he is in a state of weakness, and a weak back he has. He is nervous, and, as I stated before, his mental conditions are not as clear as they have been.

“ Q. In your judgment, is he still suffering from those conditions you have described? A. Yes, sir; more or less at times; sometimes it is not so bad as at other times.

“Q. In all probability, in your judgment, how long will these conditions continue? A. How long?

“Q. Yes, sir; how long will he have those conditions? A. I don’t think he will ever be cured from them.”

Dr. Apperson, a witness for defendant, testified that plaintiff called at the office of Dr. Brokaw (surgeon of defendant Transit Company), with whom he was connected on May 14, 1903, and he made an examination of him, examined him all over, and found p.o evidence of injury except an abrasion of his left shin bone; that plaintiff said his shoulder, side, head *664 and wrist had been bruised but there was no sign of such injury when he examined him.

The petition alleged, “That plaintiff’s avocation was that of a carpenter and builder and before his said injuries he was able to earn and did earn at least five dollars per day,, and that in consequence of such injuries he was laid up for a month, unable to work, and that ever since said injuries he has not been able to work and earn money as he was able to do in the past.” It is nowhere stated in the petition that plaintiff was a contractor and builder, nor is it alleged that his daily earnings exceeded five dollars per day. In respect to the measure of damages the jury was instructed to allow such sum ‘ ‘ as will equal the loss of earnings, 'if any, plaintiff has sustained directly resulting from his said injuries, and for such loss of earnings in the future, if any, as plaintiff will in all reasonable probability sustain on account of his said injuries.” The petition alleged that plaintiff’s loss (if totally disabled) was five dollars per day. His evidence was that his loss was not less than six dollars per day, ranging from that to eight and ten dollars per day. The proof of loss of earnings, if it can be called proof, exceeded what plaintiff alleged such loss to be, yet the jury was not limited to the amount of loss of earnings alleged in the petition but was directed to find the loss at such sum as the evidence showed it to be. The sum, if proved at all, ranged from one to five dollars per day in excess of what the petition alleged. If plaintiff desired to recover a larger ambunt of damages on this score than he claimed in his petition, he should have amended his petition to conform to his evidence; having failed to amend his petition, his instruction should not have allowed a recovery for loss of earnings exceeding the amount alleged in his petition. Rumsey v. Railway, 144 Mo. 1 . c, 189, 46 S. W. 144 ; Paddock v. Lance, 94 Mo. 283 , 6 S. W. 241 ; Ramsey v. Henderson, 91 Mo. 560 , 4 S. W. 408 . We think that plaintiff’s evidence in re *665 spect to bis loss of earnings was' too indefinite and uncertain to afford the jury a reasonable basis upon which to estimate this item of damages and that his answer that his earnings were from “ten dollars a day and eight and six” should have been stricken out and the witness required to give more certain and definite evidence in regard to his-loss of earnings.

The judgment is reversed and the cause remanded.

All concur.