Thompson v. St. Louis & Suburban Railway Co.

BLAND, P. J.

(after stating the facts). — 1. Defendant is a carrier of passengers for hire, and the law is that it is hound to exercise the greatest care, consistent with the practical operation of its car, towards its passengers, not only while they are on the car but while they are in the act of boarding them or alighting from them. When its cars are stopped for the purpose of taking on passengers, its duty to see that they are safely aboard. Meriwether v. Cable Co., 45 Mo. App. 528; O’Brien v. Transit Co., 84 S. W. (Mo.) 939. This duty, the evidence clearly shows, the defendant owed the plaintiff. The sudden turning of the brake, which caused the injury, is not accounted for. The narrowness of the platform, the fact that there were three men, beside the motorman, on it, and the presence of the gates swinging-inward and toward the body of the car, tend to show that one boarding the car would, in all probability, come Avithin the radius of the brake handle, and as the motorman invited the plaintiff to enter the car by the front platform (the rear one being in a croAvded condition) it appears to me that it was his duty to exercise that high degree of care the law requires to prevent injury to the plaintiff Avhile she was mounting the steps to the platform for the purpose of taking passage on the car. Drew v. Railroad, 1 Abb. Dec. 556. As before stated, the slipping of the brake is not explained. The brake was under the control of defendant’s motorman, who testified that it could not set itself free and that it Avas impossible for .the brake to turn without the cog wheel Avas first released from the dog, and that the dog could not be moved except by human agency. From this evidence it is shoAvn, that in the ordinary course of things, the accident would not have happened if the motorman had used proper care to set the brake, and the reasonable inference is that he did not properly set it.

A case on all fours with the one at bar is Gilmore v. Railroad, 6 Hun (N. Y.) 117, wherein the evidence of the plaintiff tended to shoAV that the motorman on one of the defendant’s electric ears left the brake on the front platform turned on tight, so as to hold the car in place, and that the injuries complained of Avere sustained by the brake being suddenly set free in some unexplained manner while plaintiff, with other passengers, Avas making her Avay into the car. It was held that the question of defendant’s negligence should have been submitted to the jury and that the slipping of the brake being unexplained authorized an inference of negligence. What* was said by Ekle, C. J., in Scott v. London Dock Co., 3 Hurlst. & Colt 596, to-wit: “Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have'the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident qrose from want of care,” is sound logic and wholesome law. The same principle of law is announced in Volkmar v. Railroad, 134 N. Y. 418; Mosby v. Commission Co., 91 Mo. App. 500; Hite v. Railway, 130 Mo. 132, 31 S. W. 262, 32 S. W. 33. And as there is no evidence tending to show that plaintiff was negligent in any respect whatever, we conclude that the case was one for the jilry, and that the court did not err in refusing a compulsory nonsuit.

2. In view of the fact that no special damages were laid in the petition, was it error for the purpose of proving damages to admit plaintiff’s evidence tending to show that she was suffering from the functional trouble testified to by her, and expert evidence tending to show that said trouble resulted from the injury? It is the well-settled law that special damages must be alleged in the petition for the purpose of giving the defendant notice of what he is to meet on the trial. But what are special damages, as contradistinguished from general damages, is sometimes a question of difficulty.

In Roberts v. Graham, 6 Wall. 578, it is said: “Special as contradistinguished from general damages, is that which is the natural, but not the necessary, consequences of-the act complained of.”

In Hughes v. Telegraph Co., 79 Mo. App. l. c. 140, this court said: “Special damages are such damages as are superadded to general damages arising from acts injurious in themselves, for example, uttering slanderous words, slander of title, slander of one in his professional calling, or they are an allowance for losses which in a particular case were natural and proximate, ti lough not the necessary consequence of the wrong.”

In Brown v. Railway, 99 Mu. l. c. 381, 12 S. W. 655, it is said: “General damages are such as the law. imlies or presumes to have occurred from the wrong complained of, and that they need not he pleaded. In such cases the wrong itself fixes the right of action. Special damages are such as really took place, and are not implied by law. They are either superadded to general damages arising from an act injurious in itself, or are such as arise from an act not actionable in itself, but injurious only in its consequences.”

In Lesser v. Railway, 85 Mo. App. l. c. 331, it was held that damages which are consequential, as loss of time, but which are not necessarily the result of an injury, should be specially pleaded.

Sutherland says: “Under a general allegation of damage the plaintiff, may prove and recover those damages which naturally and necessarily result from the act complained of; for the law implies that they wil proceed from it.” 2 Sutherland on Damages, sec. 418.

In volume 8, page 542, Am. & Eng. Ency. of Law (2 Ed:), it is said: “General damages are those which necessarily and by implication of law result from the act or default complained of.” And on the following page it is said: “Special damages, as contradistinguished from general damages, have been defined as those which are the natural but not the necessary result of the act complained of.” Substantially the same definitions are given in volume 5, Ency. of Plead. & Prac., pages 717, 719 and 720.

The law implies such damages as are the natural and necessary result of the injury, that is, such as our experience and observation has taught us naturally and necessarily result from like injuries; these need not be pleaded specially, for the reason the statement and description of the injury itself notifies the defendant what damages are the natural and necessary result of the injury. But no such notice is given a defendant, that damages will be claimed for injuries which might naturally but not necessarily result from the injury, by a general allegation of damages, and for this reason they should be specially pleaded to entitle plaintiff to recover for them. A blow upon the face and lip, sufficient to break off a tooth and to fracture the jaw bone, would not directly affect any part of the abdominal region, and hence would not naturally and necessarily disturb or damage any of the functions located in that region, therefore, if damages should result to any of them it might be the natural but not the necessary result of the injury. Plaintiff’s evidence shows that her functional troubles did not manifest itself 'until seventy days after the injury and was caused, according to the expert evidence, by nervous shock produced by the blow, hence it was not the natural and necessary result of the blow but was superinduced by the blow and might not have resulted from the injury. For these reasons we think these damages were special and should have been specially pleaded to entitle plaintiff to prove them and have their assessment submitted to the jury.

The first instruction given for plaintiff is assailed by the defendant on several grounds. The instruction incorporates some of the hyperbole definitions of the care which a. carrier is bound to exercise towards its passengers, found in some of the opinions of our appel-, late courts. The instruction may be abstractly correct, but it seems to me that an instruction would be a better guide to the jury and' more favorable to the plaintiff if it embraced all the issues and recapitulated the facts in the case and stated the legal conclusions to be drawn from those facts than the one given. Hyperbole is bad enough when found in the opinion of a appellate court.; it is much worse when found in an instruction to a jury; its tendency is to mislead always.

For the error herein noted, the judgment is reversed and the cause remanded.

All concur.

Goode in the result.