King v. City of St. Louis, 250 Mo. 501 (Mo. 1913)

LAMM, J.

Suing for $15,000 for personal injuries, plaintiff, a widow aged fifty years, had a verdict for $1157.09, and defendant on due steps appeals from the judgment thereon.

It is alleged in the petition, denied in the answer (and proved at the trial) that on a brick sidewalk on one of defendant’s public streets, to-wit, Garrison avenue, on the 6th day of December, 1908, there was a hole, a sort of pitfall, of a width and depth to cause footmen to stumble or step therein and be hurt; that it existed for such length of time as to bring home notice to defendant; and that after nightfall on said date plaintiff walked on said sidewalk and, stepping into said hole, fell, thereby breaking her right leg, dislocating her right' ankle (a lateral dislocation) and somewhat injuring' her left hip and leg. It is also alleged in the petition, denied in the answer (and proved at the trial) that she was permanently disabled and, considering her age, will, it is likely, always be a cripple and suffer pain. It is alleged in the answer, but not shown at the trial, that her injuries were caused by her own negligence contributing thereto. It is undisputed that plaintiff paid out fifteen dollars for medicines and $100 for medical attendance. It is undisputed that she was made unconscious by her fall and consequent injuries; that she was caried to her house some distance away, by those who found her in that plight and by those of her own household who received word and went for her; that therefrom she was confined to her bed for about six weeks and then used crutches for nine or ten months; and, from about an

hour after her injury, for four or five months thereafter, was regularly under a doctor’s care and from thence onward to the date of the trial had been under his treatment and in consultation with him at intervals on account of her yet visible injuries.

Defendant made no attempt to controvert the fact of plaintiff’s fall or the extent of her pains and hurts, nor to controvert her medical testimony showing that, for one of her age, they were permanent, nor her lay testimony that by standing for any length of time about her household duties her ankle pains and swelling returned to her.

There was, however, a sharp dispute on the existence of any hole at all in the sidewalk; but there was testimony (and much of it) on her behalf that several bricks were out of the sidewalk, and that their absence made a dangerous hole for several weeks before her injury. Moreover, it is not now contended by defendant that the state of the proof is such that an appellate court has any call to meddle with her verdict on that issue of fact. The case, then, may proceed on the theory that her injuries and defendant’s negligence were submitted on substantial proofs and good instructions and found against defendant.

We are asked to reverse the judgment and remand the cause on the grounds following:

(1) Because of the introduction of certain testimony tending to show that other accidents had hap-pended at the same hole.

(2) Because the withdrawal of the evidence on that score (which happened) did not heal the error.

(3) Because her instruction on the measure of damages was erroneous.

We will recur to pertinent parts of the petition, evidence and rulings in connection with a discussion of those grounds for reversal.

In our opinion there is no reversible error in the case. This because:

I. Of alleged error in admitting testimony (and herein of whether the withdrawal of the same cured sv,ch error).

With a witness (Lynas) on the stand, on direct examination the following occurred, of which alone the foregoing assignment of error is predicated:

It will be observed, in the first place, that the answer of the witness was not at all responsive to the question asked by respondent’s counsel; in the second place, that when that answer was objected to the objection was promptly sustained; in the third place, when a motion was made to strike out the testimony it was also promptly sustained; in the fourth place, respondent’s attorney withdrew the testimony; in the fifth place (which is closer home) no exception was taken to any ruling in the premises; in the sixth place, no further ruling was requested; and, seventhly, to

cap the climax, no complaint was made in the motion for a new trial of any error in the regard in hand.

To reverse a judgment when the alleged error was not the fault of respondent hut that of a witness— whose tongue was hung in the middle and wagged at both ends — when appellant’s objection was sustained, when appellant’s motion to strike out the alleged improper matter was also sustained, when, to crown all, respondent did all she could do to rectify the matter by withdrawing it from the jury, when no exception was taken below or further ruling asked, and when no error on that score is complained of in the motion for a new trial, would be to fly in the face of all precedent and the good sense of the thing.

This ruling disposes of the point.

But we allow ourselves an observation or two more. Thus: It is argued that testimony of other accidents at the place, from the same cause, is incompetent. That argument is followed up by another to the effect that the damage to defendant’s side of the case was irretrievable after the lips of the witness let fall the disclosure of his fall at the hole. It was in the nature of unpardonable sin. As to which we say: The question whether such evidence is admissible is a mooted one. Irreconcilable views are held by courts of different jurisdictions, and this court has not been able to hold an even and uniform voice thereon. In Goble v. Kansas City, 148 Mo. l. c. 475 et seq., it was ruled one way, and in Charlton v. Railroad, 200 Mo. l. c. 442, without our attention being called to the Goble case, it was ruled (with some diffidence and under the phrase “it seems”) the other. It may be, therefore, that the law in that regard is in a formative state and that the final word has not yet been spoken. Accordingly, when some case comes here turning on the point and calling for new exposition, we can deal with the philosophy of the thing in the light of precedent and settle it. In this case the assignment of error is dis

posed of on other grounds, hence to decide this phase of it would be obiter. As to the argument based on irretrievable damage, it will do to say that the doctrine of unpardonable sin on the part of a witness, whereby a party to a suit is punished vicariously, without his fault, is so novel and anxious that it may well be kept in pickle (held in solution) for examination in the future. Why penalize a party for what he could not help or forecast ?

II. Of error in the instruction on the measure of damages.

That instruction reads:

Injuries Reasonably Certain to Result. (a) It is assigned for error and argued that the instruction is bad because it does not limit recovery for future pain to such as was “reasonably certain to result” from her injuries. We are cited to Waddell v. Railroad, 113 Mo. App. l. c. 687, as authority for that proposition, However sound, the proper application of it can only be got at by looking to the

context; for the doctrine of nosciiur a sociis applies. The text of the Waddill case reads:

Observe that following the phrase, “reasonably certain to result from the injury,” the court at once went on to say what concrete mischief it was striking at, viz., mere speculative, contingent or probable damages. Doubtless when Judge Johnson wrote the quoted clause he had before his eyes an instruction violating the rule announced. What the obnoxious words were we know not. Before, however, the pronouncement be taken as authority for the criticism leveled at the instruction we are dealing with in the instant case, we would have to know that the vice in the instruction criticized by him was precisely the same as the alleged vice in the instruction now held in judgment. Evidently that cannot be true, as presently shown, therefore the Waddell case is not in point.

Our instruction puts it to the jury to find damages for pain of body or mind which the jury believe from the evidence she has suffered or will suffer by reason of said injuries “and directly caused thereby.” That restriction is more rigid on plaintiff and leaves less play for the jury’s rambling at will than the rule announced in the Waddell case. Therefore, if plaintiff was entitled to an instruction allowing recovery for injuries “reasonably certain to result” there could be no error in favor of defendant by cutting down plaintiff’s right to those damages “directly caused” by her injuries; for, as said “directly caused” fetches a smaller compass than “reasonably certain to result.”

A result cannot be directly caused that is not reasonably certain to result, but a thing may be reasonably certain to result that is not directly caused but is indirectly caused. ' So, the word “directly” more clearly indicates proximate cause to the exclusion of remote cause.

Loss of Earnings: Nominal Damages. (b) The final criticism of the instruction is aimed at its second paragraph, to-wit: “For any loss of the earnings of her- labor which the jury believe from the evidence she has sustained, or will sustain, by reason of said injuries and directly caused thereby.” It is argued that there is no evidence to support that charge.

It will be profitable to attend to the petition and evidence in order to pass on the point understandingly. The petition sets forth the particulars of her disability and then alleges, inter alia, “that by her injuries so sustained the plaintiff has suffered and will suffer great pain of body and mind, has been permanently crippled and disabled from labor and avocation as the keeper of a rooming and boarding house, has lost and will lose the earnings of her labor and avocation,” etc. Other items of loss and damage are set forth. However, the petition counts on damages in gross and does not put a value on the various elements of her damage. No question was made below on this method of pleading nor is any such question raised here. When it came to the evidence it is meager, but yet there was evidence directed to that averment, admitted without objection, viz.:

She testified she was keeping a rooming house and realized a net amount of between $75 and $80 a month when her house was full. That after her injuries she could not carry on her business to amount to anything; that she kept the roomers that were in the house but never tried to get any one-else. That a Miss Davis who was in the house took care of plaintiff and of the

house after her injury. That she had eighteen rooms and fifteen roomers at the time of her injury and got $5.50 as the highest price for any room. She did not furnish meals, but rented out rooms. She had been running that rooming house since 1906 up to the time of her injury and her duties in keeping it had kept.her busy. She applied her labor to that business. As said, she was totally disabled for six weeks and in bed, went on crutches for nine months and is lamed for life. There was uo estimate by any witness in dollars and cents of her damages in loss of “the earnings of her labor,” nor any testimony from which the amount could be calculated with precision, but yet it is obvious there was a substantial, actionable injury and loss in that regard. It was neither damnum absque injuria nor vice versa.

Under that testimony, indefinite as it was, as argued by her counsel, she was entitled to go to the jury on that item and recover at least nominal damages.

The rule is that for every actionable injury there is a corresponding right to damages and such an injury arises whenever a legal right of plaintiff is violated. “If there is no inquiry as to actual damages, or none appears on inquiry, the legal implication of damage remains . . ., therefore nominal damages are given.” [Suth. on Dam. (3 Ed.), sec. 9; 13 Cyc. 14.]

It is not necessary in this case for us to hold one way or the other on whether she could recover more than nominal damages. This is so because the modest size of her verdict, considering her confessed grievous hurts and permanent injuries, together with her undisputed pain of body and mind, shows that the jury could not have allowed her anything of substance on the score of “lost earnings of her labor.” We feel sure of this, because, deducting her conceded doctor’s bill and the item for medicine, totalling $115, there is

left only a judgment of $1042.09 as jnst compensation for the broken leg, a. dislocated ankle, a permanent disability and tbe consequent suffering of tbe widow.

No Error Affecting Merits. (c) Moreover, if it be taken for granted, arguendo, that she was entitled to no more than nominal damages for loss of the earnings of her labor under the state of the proof, and that the jury should have been told so, yet, taking her smalt verdict, we cannot bold the error, if any, affected the merits and constituted reversible error. [Shinn v. Railroad, 248 Mo. 173.] We must “believe” the merits were affected to the injury of appellant before we can reverse a judgment. [R. S. 1909, sec. 2082.] We have no such belief, but contra.

(d) But was it error at all? We think not. Tbe instruction as it stood was well enough as a general instruction. If, now, defendant wanted it limited to nominal damages should it not have asked one on its own part with that limitation? We think so. [Browning v. Railroad, 124 Mo. l. c. 71 et seq.] This it did not do. Mere indefiniteness in a general instruction, when appellant stands mute and asks none, is not reversible error. [2 Thomp. on Trials (2 Ed.), sec. 2341.]

Let the judgment be affirmed. It is so ordered.

All concur.