Kennedy v. St. Louis Transit Co.

REYBURN, J.

(after stating the facts as above.) — 1. Among other instructions given at the instance of plaintiff was the following:

“6. The court instructs the jury that before you can find for the defendant on the grounds that plaintiff’s own negligence contributed to cause the injury, as alleged in defendant’s answer, you must believe from a preponderance or greater weight of the evidence that plaintiff negligently attempted to alight from defendant’s car before it came to a stop at Broadway and Olive, streets. ’ ’

Appellant vigorously assails this charge as ignoring the plea of contributory negligence contained in the answer, and precluding the jury from its consideration. The instructions of the trial court together constitute the whole charge, and if taken as a whole and read together, they submit the issues fairly, are not calculated to mislead the jury, are harmonious, consistent and embrace all the issues, they are sufficient. Liese v. Meyer, 143. *6 Mo. l. c. 560. In this case the court gave eight instructions, made up of three at the instance of plaintiff, four asked by defendant, and one of its own motion, respecting the form of the verdict. Instruction numbered three on behalf of defendant was predicated upon the contributory negligence pleaded in its answer, and directed a finding for defendant, if the jury found that plaintiff was not caused to fall by the starting of the car with a sudden jerk, but fell through an attempt to leave defendant’s car while it was in motion. Plaintiff in turn was entitled to the instruction criticised, and the whole charge found in the entire instructions considered together, embraced all the issues and fairly submitted the cause to the consideration of the jury.

2. The instruction regarding the elements and measure of recovery, authorizing the jury to award damages for future mental anguish, distinguished from physical pain and injury, is assailed as not warranted, as there was no disfigurement of the person to produce mental anguish as distinguished from physical pain, either in the past or in the future, and no evidence of any past or prospective mental anguish was tendered, and finally the petition contained no allegation of mental anguish, and in absence of proof of such injury, the court should not have instructed for recovery thereon. Mental anguish may be caused by great pain of body or mind, or both, even where the injury may not be external or visible, nor accompanied by apparent disfigurement. In the language of Judge Black, in Brown v. Railway, 99 Mo. 310 , a well-considered case dealing with this subject, “Facts which are necessarily implied from those alleged need not be stated. Bliss on Code Pleading (2 Ed.), sec. 176. Physical pain and mental anguish usually, and to some extent necessarily, flow from, or attend bodily injuries. It is not necessary to make specific, proof of pain and mental anguish. These elements of damage are sufficiently shown by the evidence which discloses the nature, character and extent of the *7 injuries. From such evidence the jury may infer pain and mental anguish. C., B. & Q. R. R. v. Warner, 108 Ill. 538 ; s. c., 18 Am. and Eng. Railroad cases, 100; T. & P. R. R. v. Curry, 64 Tex. 85 . It follows, from what has been said, that where bodily injuries are alleged in the petition, and proof thereof made upon the trial, and the person injured is the plaintiff, physical pain and mental anguish are proper elements of damage though not stated in the petition.”

3. The injuries sustained by plaintiff were described by her medical attendant as a fracture of one of the hip or pelvic bones, the coccyx, as denominated by him. in medical nomenclature, a hurt which he deposed would take at least a long time to heal and unite, and which he did not regard as very rare and of which, in his fourteen years experience, he had seen over twenty. On defendant’s behalf, three members of the medical profession testified; the first, a man of thirty years and more professional experience, of which professional life he had spent many years at the city hospital, accompanied by the attending physician referred to above and a younger physician later mentioned, had made an examination of plaintiff’s condition on the morning of the trial, May 12, 1903, and gave as his expert opinion its results. He declared that he found no evidence of any fracture and that the bone in question appeared to be in normal condition, and if any such injury as fracture of the coccyx had. been suffered by plaintiff, she would have been unable thereafter to walk six blocks or even to stand, and that the only two patients with such injury he had seen, which he pronounced a very rare fracture, were unable to stand. The remaining doctor present at the above examination also expressed his professional judgment, that there was no injury of the kind described, and that the region mentioned was in natural condition.

The physician in defendant’s employ, who attended plaintiff shortly after the occurrence and investigated *8 the extent of her injury, testified that he had visited and examined plaintiff at her residence, and found no evidence of the injury; that the hone involved showed no evidence of any fracture, and its position was normal, that she was in bed when he visited her but she sat up and was up and around the room, walking around the room when he was there and in bed about half the time, and it would have been impossible for her to walk, sit up, or move if such fracture had occurred, and the injury indicated was of such rare character that many practitioners never encountered it. The testimony was barren of any proof of any medical expenses paid or incurred by plaintiff, or any expenditure for any restoratives or medicines.

The defendant urges that the verdict is so manifestly against the evidence that simple justice demands a new trial. In ordinary actions at law, this court does not weigh the evidence, and usually should not interfere in regard to the weight of the evidence as encroaching upon the province of the jury. Garrett v. Greenwell, 92 Mo. 120 ; Whitsett v. Ransom, 79 Mo. 258 . And this court will rarely interfere with the discretion of the trial court in directing a new trial on the mere question of evidence, inspired by the belief that the trial courts recognize and bear in mind the rule so clearly announced by-the highest tribunal of this State. “Circuit courts have large discretion in the matter of' granting new trials, particularly upon the ground that the verdict is against the weight of the evidence. This court has often ruled that in law cases where there is a conflict in the evidence, it would not review it and determine its weight and it has as often declared it to be, not only the right, but the duty of circuit courts to supervise the verdicts of juries and grant new trials, if the verdict is, in their opinion, against the weight of evidence.” Bank v. Wood, 124 Mo. 72 . And more tersely but as forcibly stated in a later ease: “It is the province of the jury, in the first place; to assess the damages, and it is the *9 duty of the trial court to grant a new trial or to order a remittitur, if it thinks the damage excessive.” Norris v. Whyte, 158 Mo. 20 .

But it is now well settled in this State that an appellate court, under the superintending control conferred over the inferior courts of record by the Constitution of the State (art. 6, sec. 12), has the power and authority to set aside judgments, where the trial judge has failed to interpose, based upon verdicts indicative of passion,, prejudice or misconduct. Norris v. Whyte, supra; Chitty v. Railway, 148 Mo. 64 . Summarizing the testimony in this case, the conclusion,is irresistible that the verdict and award of damages herein are manifestly and clearly wrong and excessive, and that justice will be-attained by reversing the judgment and remanding the cause for retrial, which is accordingly ordered.

Bland, P. J., concurs; Goode, J., dissents.