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left front Wheel about the center of the car tracks, and the chauffeur was trying to Swing the truck to the right and away from the tracks, the motorman left his controller and Stepped back toward the Sand box at his left without shutting off the power, permitting the car to run along until it collided With the truck. A boy aged nine years Was a witness for plaintiff, and testified he was sitting on the Sand box next to the motorman. On the Car in question, and that he saw the truck On the tracks about 300 feet ahead. When the mOtOrman left the COntroller and moved back toWard the Sand box; that the motorman did not ring the gong nor was the speed of the Car Checked before the collision. The motorman testified for the defendant that he saw plaintiff's chauffeur driving the truck in question along side of the tracks on Kingshighway, but that the truck , was too close to the tracks for him to pass; that he came up behind the truck about 2 blocks from the place of the collision; that he kept his car a safe distance in back of the truck for the Said distance of 2 blocks and rang his gong; that a little bit South of Oleatha avenue the chauffeur turned the truck away from the tracks toward the right and that he (the motorman) thought the chauffeur had turned out to let him by, and thereupon: “I gave it the juice to pass and instead he turned on the tracks again with the wheels, just about with the center on the left-hand rail, on the east rail. Q. How far was your car from this truck at the time it swung on to the tracks —just before you hit it? A. Why, I should figure about 15 feet. Q. How fast Were you traveling about that time? A. About the same rate of speed that he was, not over 5 or 6 miles an hour; just about as fast as I could trot, I suppose.” The impact of the car with the truck Caused the front Wheels Of the front trucks Of the Street Car to be thrown Off the trackS. The only other witness for defendant testified that he Was a passenger and Seated about the center of the car; that he saw the plaintiff's truck when it was about 60 feet away from the car, just about the time when the right front Wheel of the truck Was going On to the outside rail of the track upon Which the Street car was running; that the truck was barely moving and that the Street car was going about 15 miles an hour; that he did not hear any gong sounded by the motorman; and that just about the time the collision occurred the car “was going at a pretty good speed.” [1, 2] Appellant makes but one contention, namely, that the petition and instruction numbered 1, given by the court at the request of plaintiff, which instruction follows the petition, are erroneous because the petition does not allege, and the instruction does not require, that the motorman saw or could have seen that the chauffeur Was Ob
livious to his peril. The point thus raised is not that the motorman did not see plaintiff's servant in a position of peril in time to have avoided the collision by the exercise of ordinary care on the part of the motorman, but that the petition fails to plead the humanitarian rule, in that there is no allegation therein that the motorman could have Seen that plaintiff'S Servant Was Oblivious to his peril in time for the motorman to have avoided the collision, and we are cited as authorities on this proposition the cases of Knapp v. Dunham, 195 S. W. 1062; State ex rel. v. Ellison (Sup.) 176 S. W. 11; Kinlen V. St. Ry. Co., 216 Mo. 145, 115 S. W. 523; Pope v. Railway Co., 242 Mo. 232, 146 S. W. 790; Reeves v. Railway Co., 251 Mo. J69, 158 S. W. 2; Mertens V. Transit Co., 122 Mo. App. 304, 99 S. W. 512; Gebhardt v. Transit Co., 97 Mo. App. 373, 71 S. W. 448.
Under the factS in this case We hold that the cases cited Supra by the learned Counsel for appellant are not authority in this case for the point raised. We hold the facts alleged in the petition sufficient to state a cause of action, and as there is nothing in the record tending to show that the chauffeur drove Onto the tracks purposely, and wantonly exposed himself or the truck to danger, and as “obliviousness to peril” was in no sense made an issue in the case, we hold it was not necessary for plaintiff's inStruction to require that the motorman saw, or by the exercise of ordinary care should have seen, that the chauffeur was Oblivious to his peril. A petition without that requirement and an instruction following this form of the petition are approved in the case of Taylor V. Met. St. Ry. Co., 256 Mo. 191, 165 S. W. 327, and the principle here contended for was decided to be erroneous in the case of Bybee v. Dunham, 198 S. W. 190, in which the case of Knapp v. Dunham, supra, relied upon by appellant is distinguished.
No other assignments of error are before us. The defendant has had a fair trial, the record abundantly supports the finding of the jury, and We are Satisfied that the judgment is for the right party; and it is accordingly affirmed.
2. INJUNCTION 3:208— FINAL DECREE WHEN To BE ENTEREp. A final decree can be rendered in injunction proceeding only by the circuit court wherein the cause is triable, in term time.
“Not to be officially published.”
Original proceeding in prohibition by the State, on relation of William C. McMahon, against Peter H. Huck, Judge of Circuit Court of St. Genevieve County. Absolute Writ issued.
B. H. Boyer, of Farmington, for relator. R. C. Tucker, of Flat River, for respondent.
ALLEN, J. This is an Original proceeding in prohibition. On March 14, 1918, one of the judges of this court, in vacation, issued a preliminary writ of prohibition, on the application of relator herein, returnable into court, prohibiting the respondent, as judge of the circuit court of St. Genevieve county, from causing to be entered in the records of said circuit court, as and for an order or decree of such court, a certain Order or decree purporting to have been rendered by him in vacation, until the further order of this court, and commanding the respondent to appear on a day named and ShOW cause, if any he had, why he should not be absolutely prohibited and forbidden to SO enter Such decree in said records. To the preliminary Writ and relator’s petition the respondent by Counsel duly filed his return; and thereupon relator filed a motion, in the nature of a demurrer to the return, praying that our writ be made absolute. Upon the issues thus joined the matter has been argued and submitted.
The conceded facts may be summarized as follows: Some time in January, 1918, the prosecuting attorney of St. Genevieve county, during the vacation of the circuit court of that County, instituted an injunction proceeding against the relator herein, William C. McMahon, to restrain him from further conducting a “wholesale liquor business” in said county, upon the ground that said business was being so conducted as to constitute a public nuisance; and the prosecuting attorney presented to the respondent, judge of said circuit court of St. Genevieve county, in chambers, in Said St. Genevieve County, an application for the issuance of a temporary injunction against relator, to restrain him from conducting Such business until a final hearing of said injunction suit upon the merits. The hearing before the respondent judge, on the application for a temporary injunction, was set for January 26, 1918, and, it is said, by agreement of counsel it was arranged that this hearing be had at the courthouse in the city of Farmington in St. Francois county. This hearing was deferred until February 11, 1918, when the respondent undertook to hold a final hearing, “or hearing for the final determination of the matter in controversy,” sitting at the courthouse in Farmington, St.
Francois county. The return sets up that this was done by consent of counsel and for the convenience of Witnesses, and the demurrer admits this as being true, but the matter is unimportant. The respondent heard the evidence adduced by both parties to the suit, and the arguments of counsel, and took the matter under advisement until February 15, 1918, on which day respondent undertook to render a final decree in the cause, as and for a decree of the circuit court of St. Genevieve county. Thereafter this “decree” was entered by the clerk of the circuit court of St. Genevieve County upon the records of said court, in vacation, as and for a decree Of the COurt. In the relator's petition in this court it is alleged that the respondent judge caused the clerk of the circuit court of St. Genevieve county to enter such “decree” upon the records of that court, and that respondent “is threatening and intending, at the convening of the April term, 1918, of the St. Genevieve circuit court, to make the order aforesaid a permanent record of Said court in term time, in excess of his jurisdiction.” The return does not deny that the “decree” was entered by the clerk in the records of the circuit court of St. Genevieve county, but denies that respondent caused the clerk to make such entry, but this is unimportant. The return does not in terms deny that respondent is intending to make such “decree” a permanent record of the circuit court of St. Genevieve county, at the April term, 1918, Of Said court, but denies that respondent intends so to do in excess of his jurisdiction,  The only question before us is one which requires no extended discussion. The jurisdiction and authority of respondent, as judge of the circuit court of St. Genevieve County, to issue a temporary injunction or restraining order during the vacation of that Court is not questioned. But it cannot be disputed that respondent, as judge of the circuit court of St. Genevieve county, was Without jurisdiction to finally hear and determine a cause pending in that court, during vacation of the court, and while sitting in another county. “It is a fundamental principle that courts can exercise judicial functions only at such times and places as are fixed by law, and that the judges of courts can enter no orders in vacation, except such as are expressly authorized by statute.” State v. Eaton, 191 Mo. loc. cit. 156, 89 S.W. 950. And COnSent Of counsel could not clothe respondent with such jurisdiction.  It follows that the order or decree purporting to have been rendered by respondent at Farmington in St. Francois county is not and cannot be made a final decree of the circuit court of St. Genevieve county in the injunction proceeding above mentioned. It may be that such “order or decree,” though appearing in form to be a final decree, can properly Operate as a temporary restraining Order until the next term of the circuit Court Of St. Genevieve county, though that question is not now before uS. We have not attempted by our writ to prevent the same from operating as a temporary restraining order during the Vacation of the circuit court of St. Genevieve county; and respondent and counsel appear to have treated it as having, in any event, such effect. But a final decree can be rendered in the injunction proceeding only by the circuit court wherein the cause is triable, in term time. As yet no final hearing has been had before the court; and, since the court stands adjourned for the term, no such hearing can be had until the next term of that court, which begins On the fourth Monday of April, 1918. Our preliminary rule in prohibition should be made absolute, and Writ aWarded accordingly. It is so ordered.
6->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
REYNOLDS, P. J., and BECKER, J., conCllr.
WINTERMAN v. UNITED RYS. CO. OF ST. LOUIS. (No. 15050.)
(St. Louis Court of Appeals. Missouri. 191 Rehearing Denied May 22, 1918.)
1. DAMAGES 3:208(4)—LOSS OF EARNINGSSUFFICIENCY OF EVIDENCE. In an action against a street railway for injuries to an intending passenger by suddenly starting the car and wrenching his arm and shoulder, thus dislocating his ribs, evidence held to entitle plaintiff to go to the jury on the item of recovery, at least of nominal damages, for loss of earnings, if any, in the future. 2. TRIAL. Q->256(13)—INSTRUCTIONS-INDEFINITENESS—REQUESTS. Mere indefiniteness, in a general instruction authorizing plaintiff to recover damages for loss of future earnings, where plaintiff was entitled to nominal damages only, but defendant had not asked an infstruction limiting the recovery to nominal damages, was not reversible error, particularly where the verdict was not excessive, but fully warranted by the character of the injuries and their permanency, even when limiting the item for loss of earnings, if any, in the future, to merely nominal damages. 3. DAMAGES Q->132(3)—PERSONAL INJURIESEXCESSIVE VERDICT. Where injuries received by the intending passenger of a street railway, 26 years old, resulted in a thickening and induration of the right side of his spine, involving the intercostal muscles, and ligaments, and the articulation of the tenth, eleventh, and twelfth ribs, with a scoliosis or curvature to the right, also a raising of his right shoulder and the left shoulder blade, and an uplifting of the right chest cavity or thorax, a condition of permanent deformity, subjecting the passenger, when he moved or exercised, to pain unless the two vertebrae of the spine should become ankylosed, verdict for $4,900 was not excessive; having been expended for medical treatments, etc.
Appeal from St. Louis Circuit Court; Karl Kimmel, Judge. “Not to be officially published.”
* Action by Ewald L. Winterman against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.
T. E. Francis and Chauncey H. Clark, both of St. Louis, for appellant. Leonard & Sibley, Of St. Louis, for respondent.
BECKER, J. Defendant appeals from a judgment for $4,900 rendered against it and in favor of plaintiff in action for personal injuries. Plaintiff's petition alleges and his evidence tends to prove that, While he was in the act of boarding a street car which had come to a stop for the purpose of taking him On aS a paSSenger, the Car Started. While plaintiff grasped the handrail with his right hand, and had his left foot on the rear step Of the car, and while his right foot was still on the ground and his weight was nearly equally balanced on each foot, the car started forward with a sudden and violent jerk and lunge, whereby plaintiff’s right arm and shoulder received a severe jerk and the entire right Side of the trunk of the body was twisted and Wrenched SO as to partially dislocate, or cause to become partially dislocated, three of his ribs. At the time of the trial plaintiff was suffering with curvature of the spine, which resulted from these injuries, together With a swelling, thickening, and hardening of the muscles and ligaments in the region Where his ribs were partially dislocated at the Spine, and at the time of the trial plaintiff was compelled to wear a brace or cast to support such ribs and to produce, if possible, “an immobilization” of the injured Vertebrae of the spine. The defendant withdrew its plea Of contributory negligence at the beginning of the trial and stood upon a general denial. Defendant did not introduce the testimony of any eyewitnesses, in that it had no report Of the alleged accident at the time of its occurrence. A Verdict resulted in favor of the plaintiff and against the defendant for $5,000 and a remittitur of $100 was Ordered and entered because an instruction for plaintiff permitted a recovery for medical expenses in excess, by such sum, of the amount alleged in the petition. After an unavailing motion for new trial defendant brings this appeal.
Learned counsel for appellant argues most earnestly that plaintiff's instruction defining the measure of damages is erroneous for the reason that it permitted an award for loss of earnings in the future in an absence of proof of what plaintiff’s earnings had been in the past, and for the further reason that such inStruction permitted an award for loss of earnings in the future when the evidence did not show, nor tend to show, that the plaintiff would not be able to perform the same work he had been performing prior to the alleged accident. The instruction complained of reads as follows:
“The court instructs the jury that, if under the evidence and the law as declared in other
instructions of the court you find a verdict in favor of plaintiff, you should assess the damages. In your verdict at such a sum as you believe from the evidence to be a reasonable compensation for any one or more or all of the following items of damage, if any, which you find and believe from the evidence the plaintiff has already sustained (or is reasonably certain to sustain in the future) as a direct result of the acts of the defendant complained of in this action, namely: (1) For pain of body, if any; (2) for mental anguish, if any; (3) for necessary expenses for medical attention, if any, not exceeding $200 to this date, however; (4) for necessary expenses for drugs, bandages, dressings, braces, X-ray photographs, baths, and treatments, if any, not exceeding, however, $300 to this date; (5) for loss of earnings, if any, in the future, there being no evidence of loss of earnings to this date; (6) for injury to his body, if any. But in no event shall your verdict exceed the total sum of $10,000.” As we read this record we cannot view plaintiff's case as one in which there is an entire absence of any testimony whatever tending to show what the plaintiff was able to earn prior to receiving the injuries complained of. Plaintiff testified that prior to the day upon which he received his alleged injuries he had been acting as secretary of the Osage Lumber Company, of which company his brother was president; that his work was “filing claims, tracing accounts, and things Of that sort, general Office duties.” He further testified that he had been forced to remain away from his work, and, in answer to the question of how often he had thus “been forced to lay off from Work,” answered: “I have never kept any track; sometimes it would pain me too bad and I would stay at home.” Asked to describe how these injuries have affected him since he had received them. plaintiff answered: “I have not been normal since I was hurt; I have lost weight, between 17 and 20 pounds; . I have not been able to indulge in lifting anything. If I lift a weight of 25 or 30 pounds I. will suffer the next day all day; and at night, I can’t tell you what pains I have to go through. When I arise, I have to get up sometimes at 3 or 4 o'clock in the morning and sit in a rocking chair in order to get the rest of the night's sleep; I guess you will all appreciate what that means. Q. Now, Ewald, what is the nature of this pain, and where is it? A. It is a sharp, sticking pain; any movement or any exercise, bending or lifting, anything I do, it results in a sharp sticking pain. Even resting in bed, after relaxing in bed, I feel the sharp, sticking pain in my ribs; it was in my shoulder for a, while, but I don't feel this pain in my shoulder as much as I do this pain in my ribs, the eleventh and twelfth ribs. Q. Why do you say if you take any exercise, you have to suffer the next day? A. I have to stay home and rest myself and sit in a chair with pillows under my back, where the injury is.”
It appears that he was paid his salary just the same as though he had not remained away from his work, and this was the case for a period of 1% years after plaintiff met with his injuries and up to Within Six months of the time of the trial. During these last six months, however, plaintiff had some other position.
Several physicians testified that plaintiff's injuries were permanent, and that plaintiff at the date of the trial was not able to do any manual labor, and to stoop or bend over would result in aggravating plaintiff'S COndition and cause him pain, and that he would be deformed for all time. A witness for the defendant testified that he represented an accident insurance. Company in which plaintiff had a policy; that in making his claim thereunder plaintiff had Stated he had other business in addition to his employment by the lumber company, in which he had an interest, and that he could not attend to his WOrk in COnnection thereWith, but that plaintiff did not state the nature of the other business. [1, 2] We hold that under this testimony, indefinite as it was, plaintiff was entitled to go to the jury on that item for loss of earnings, if any, in the future and recoVer at least nominal damageS. The instruction Was general in its nature; and, as has been held in the case of King v. City of St. Louis, 250 Mo. 501, loc. cit. 514, 157 S. W. 498, mere indefiniteness, in a general instruction where, for example, the plaintiff is entitled to nominal damages only and the defendant has not asked an instruction On his own part limiting the recovery to nominal damages Only, but “Stands mute and askS none, is not reversible error.” No instruction on the measure of damages Was offered by the defendant, and, having failed to offer such an instruction modifying the general language of plaintiff's instruction given, and holding, as we do, that there was sufficient testimony adduced on behalf of plaintiff to warrant a recovery for at least nominal damages, we must rule this point against appellant. Nelson V. United Rys. Có., 176 Mo. App. 423, 158 S. W. 446; State ex rel. United Rys. Co. v. Reynolds, 257 Mo. 19, 165 S. W. 729; Carter v. Wabash Ry. CO., 193 MO. App. 223, 10C. Cit. 234, 235, 182 S. W. 1061; Mabrey v. Gravel Road Co., 92 Mo. App. 596, loc. cit. 610, 69 S. W. 394; Browning v. Railway Co., 124 Mo. 55, loc. cit. 71, 27 S. W. 644.  We next consider the character of plaintiff's injuries in Order to paSS upon the appellant's contention that the Verdict in this case is excessive. There is ample testimony showing that plaintiff at the time of the trial WaS Still Suffering from a thickening and induration on the right side of his spine, involving the intercostal muscles and ligaments, and the articulation Of the tenth, eleventh, and twelfth ribs, With a scoliosis or curvature to the right, also a .raising of his right shoulder and the left Scapula, Or shoulder blade, and an uplifting of the right chest cavity or thorax, the measurement being about an inch or an inch and a quarter higher then on the left side, without any compensatory curvature in the lumbar region; that this condition is permanent, and plaintiff is deformed for all time. There was also testimony of reputable physicians that unless the two vertebrae should become immobilized by ankylosis so that the joint betWeen the two vertebrae grows together and cannot be used, the plaintiff will continue to Suffer pain when he exercises or makes any physical exertion. Plaintiff Was Wearing a cast at the time of the trial, some two years after the accident, and at the time WaS having prepared for him another cast which would incase his body from below his arms to his hips. Such being his injuries, When taken in connection with the fact that at the time Of his injuries he was but 26 years old, in excellent health, and that the record discloses he had expended over $200 for medical services up to the date of the trial, and in addition $200 for drugs, bandages, dressings, braces, X-ray photographs, baths, and treatments, We must hold this contention of appellant to be Without merit. In fact in considering the objection made by appellant to the instruction on the measure of damageS, We Were in a meaSure influenced by the fact that the verdict in this case Was - not excessive, but was fully warranted by the character of the injuries and their permanency, even when limiting the item for loss of earnings, if any, in the future to merely nominal damageS.
The case was well and fairly tried, and we find no error in the instructions, and the judgment is for the right party, and is not excessive. The judgment is accordingly affirmed.
ALLEN, J. This is an action to recover for the loss of three articles of merchandise alleged to have been delivered by plaintiff to the defendant for shipment from St. Louis, Mo., to Manzanillo, Mexico, and which, it is alleged, were lost while in defendant's charge. The trial below, before the court without a jury, resulted in a judgment for plaintiff in the sum of $386.24, from which defendant prosecutes this appeal.
The evidence adduced by plaintiff tends to show that the articles here in question, conSisting of a hay press, part of a wagon and a disc plow, were a part of a carload lot of agricultural implements which plaintiff intrusted to defendant for shipment from St. Louis to “Jorge M. Oldenbourg, Sucs.,” at Manzanillo, Mexico. The car was loaded by plaintiff's employés in the city of St. Louis, and turned Over to the St. Louis Merchants’ Bridge Terminal Railway Association, which company issued a “shipping ticket” therefor, showing that the goods were to go forward over the “C. C. C. & St. L. R. R.” This shipping ticket was given to defendant by plaintiff, Whereupon defendant issued to plaintiff its bill of lading, wherein it acknowledged the receipt of one carload of agricultural implements, to be shipped to the port of New York and thence by “steamer, Panama Railroad & Steamship Line” to the said ultimate point Of destination, viz., Manzanillo, Mexico. And plaintiff paid to defendant the total charges for the through shipment, for Which defendant issued its receipt. The evidence for plaintiff tends to show that the three articles mentioned were loaded into the car, and that the car contained 92 articles in all. The three articles in controversy Were not delivered to the consignee, and plaintiff Sues as upon an assignment of the COnSignee's claim against defendant for the value thereof. There is evidence that when the car arrived at Weehawken, N. J., where its contents were unloaded and the packages “checked,” Only 89 packages were found therein.
 It is argued that the court erred in refusing to declare, as a matter of law, that plaintiff could not recover. This argument proceeds upon the theory that with respect to the Shipment involved the defendant acted merely as a forwarder and not as a carrier; that the Carload of merchandise did not come into defendant’s possession until it reached Weehawken, where defendant took charge of it for the purpose of forwarding it to its destination; and that the evidence failed to show that the articles in controversy were delivered to defendant at that place. But We regard it as quite clear that the theOry thus advanced by learned counsel for de