*1 price. purchase money paid the entire the wife’s contention that jointly in finding amply justify The evidence would conveyed to be directed that it money in the farm and vested their buyer as was was much true, be wife jointly. If this them which of them checked immaterial husband, and it was her funds, checking The out of joint account. money out of closing mere conveyance, were the mechanics looking after the her made own made. If the wife deal the investment after did, she strongly to the evidence show investment, tends money her without investing her of the husband question we have case. an issue in the The written is not conclusion consent supra. Heathman, Larrick v. support in reached finds per- behalf and a witness in own called his husband was deny he conversation wife which mitted to had the with his Milligan Leeka Contention Leeka, Cleo Ruth Orville testified. testimony made the admission the husband’s violated the party other party rule that where' one transaction dead the permitted testify. not be should error, call for testimony,
The admission of this a re- does not versal of an being equity, the case. action we can exclude This incompetent evidence from here. consideration competent justifies
A fair of all consideration evidence Ring Daisy Bing conclusion that Fred E. jointly their invested money land, took joint title thereto names, their in- thereby by tending to create estate the entirety, and we so find. results, therefore, It death of upon Daisy Bing, E. Fred Bing sole was the owner land. stated,
For the the decree below reasons should and is affirmed. All concur. Nay City Her Next M. T. Friend, Berry,
Anna Nay, v. Kansas a Corporation, M. and James Public Service Company, Kurn and John G. Trustees of and for St. Louis-San Lonsdale, Railway Company, Corporation, Appellants. Francisco 108 S. (2d)W. 98. 30, 1937. One, July
Division *3 Jamison, Conrad, Henry Durham, Hale Houts Joseph L. E. W. 8. Lonsdale, Hus Lee G-. Trustees and' M. for James M. Kuril John Francisco of and for Louis-San St. *4 Watson, Ess, oner, L. Carr and Or Whittaker,
Charles Barnett & City for Kansas *5 Mitsser, respondent. Cooper &
Jenkins Vance Musser *6 664 damages in-
FERGUSON, personal an action for C. This for juries. time, Plaintiff, lady years age a young eighteen at injured, a 22, 1933, on car of the defendant October when street City upon a Company, pas- Public Kansas which she was freight a senger, Francisco and train of the defendant St. Louis-San Railway Company a rail- crossing collided at street and ear road part “in the Kansas tracks Sheffield district in the east City.” Plaintiff, friend, brought against next both this action Company (hereafter the Kansas City to as referred Company) Public Service and the Trustees of Louis- the St. corporation (hereafter San Railway Company, Francisco a referred to both the Frisco Railway Company). and The cause instituted and tried in the Circuit County Court of Johnson verdict, judgment against had thereon, defend- both ants, damages $20,000. amount of Defendants separately appealed. upon
We not are called rule a demurrer evidence and condensed statement of the facts wall to present sufficient crossing issues involved. At this two east and west street car tracks (an track) single eastbound and westbound north and cross Frisco south crossing railroad track. The ain inter- not street section and the upon are railroad tracks not do not .cross point. street road at this The street car was westbound traveling freight the north car The composed street track. engine freight tender, of an cars a caboose, north- bound. These east and west street car tracks also crossed north and south tracks of the Missouri Pacific 187 feet east of Frisco, crossing. appear will presently As Section Revised 1929, Statutes in this case. invoked That section reads: “It duty railway every shall be the. company corporation street operating railway street across the of a tracks company railroad bring stop its cars to full least twenty ten more than reaching of the railroad feet before the tracks company. And it employee of duty conductor, or some other shall be the railroad to the tracks such railway company, go forward ap- ascertaining whether train is company purpose for the crossing.” Public Service proaching *7 track, and large sign right north of its westbound at the or board was track, .upon twenty-two the Frisco which about feet east of Crossing you “Stop sure large lettering, painted —Be —Railroad warning crossing.” track before admitted that have clear It is this operators cars. to the of its westbound street or demand was directed charge and one who collected fare The street man both car was about operated nighttime the ear. The collision occurred in the at Accompanied by one o’clock a. 1933. her cousin October m., Ruby car Fairmount Snow, this at plaintiff boarded westbound Prospect Station. At the room time had on Street City. and visiting She been her Kansas had sister at Fairmount returning to her room. Plaintiff the did was testified that street car stop crossing the at the Missouri Pacific tracks continued west at the speed” about “usual ear without street checking slackening speed or onto the was Frisco track it where by engine struck the of the Frisco northbound train. She the said operator going upon did not the car before the stop Frisco track. engineer The Frisco stated that he saw the approaching street car crossing yet seventy-five the when it was about feet east Frisco track and that it did not stop going onto the Frisco before track. The Public Service Company employed a watchman at crossing during daytime midnight nighttime. and until operator Both the of the street car the trainmen knew there was duty no watchman on night. at this time of The that evidence was street customarily cars stopped before going crossing. onto the The engineer Frisco testified he that had “run trains over line since that 1918” and had never before stop observed street car before fail to crossing the track. operator railroad The of the testified street car brought he to a complete car full and stop with the or west front end of the eight car six about feet east railroad track from point he see the headlight, lighted, aof locomotive approaching from either the stopped and south; north or was car point stood at this for about ten seconds; he looked both north and south a train; that he no heard whistle or bell saw headlight no thereupon he car, started the had a speed attained of about five miles hour ear, and that which was forty-eight length, feet in gotten had about “two-thirds” over the crossing when it struck by was engine. Frisco A Mr. and Mrs. Gillmore testified saw the collision. Mr. Gillmore was called as by plaintiff witness and Mrs. by Gillmore defendant Public Service Company. Both said that before going onto the rail- distance
road track brought stop car full short was of the east Plaintiff defendant Public railroad track. approached the Company adduced evidence the Frisco train that as crossing lighted headlight the locomotive was not no warning The bell whistle sounded. was con- rang evidence locomotive automatic bell- on the tinuously approached crossing; as the train been bell had ringing point crossing started several from the and had miles blasts rung continuously; customary thereafter usual and headlight given; whistle were locomotive and that good engine lighted crossing, condition, approached all night prior only and at times thereto. evidence of speed testimony approached crossing of the trainmen of ten or twelve an hour. miles charged general petition negligence
Plaintiff’s and failure highest degree to exercise the care as to defendant specific Railway Company negligence As *8 charged respects; in the following failure to slacken and speed operation crossing high dangerous of the train over the aat rate and speed; of lookout; failure a keep proper ring to failure to the alleged as the approached bell train the crossing “violation” of statute; failure to a approached crossing; as it sound whistle the keep “headlight burning” failure to a 4845, in violation of Section 1929; Revised negligence, Statutes and humanitarian that, the stop” trainmen “failed to the train “and slacken the failed to speed they seen, thereof when saw could have plaintiff the and position car a ... peril, of imminent oblivious plaintiff and danger, her in time, of have ... to avoided the collision.” The separate general answer of each defendant was denial. Plaintiff jury general to negligence went the on to as defendant Service Company abandoning charges and the negligence other against Railway the Company, enumerated in her petition, by her instruction 1 only grounds numbered submitted as recovery the against it; respects; failure in the following (1) to ring bell, (2) (3) whistle, sound a to headlights have the lighted, (4) and to slacken speed, approached as the crossing. Railway the Company’s complaint of error in the instruction will be discussed Though, noted, plaintiff later. as the. against abandoned charge, its negligence Railway Company, the under the rule, humanitarian Company the Public offered, and the gave, court its Instruc authorizing K-9 tion the to find against its Railway Company upon codefendant the what Railway the Com pany “a sort of denominates humanitarian doctrine.” The Rail Company complains way giving the of this instruction was prejudicial to it and constitutes reversible to error as it. On the gave court Company the hand, request other at exception of objection and D-2, over the its instruction numbered here that complains Company, who, appellant, the Public We it. error, reversible prejudicial, was instruction will complaints, after'which we these cross will at this discuss time makes assignment Railway Company of error which examine noted, and the con- it, above against plaintiff’s Instruction as to re- erred court tention of Public Service damages. instruction, relating fusing proffered K-5, its K-9 given Company’s Instruction Public Service Defendant complains, against Railway Company codefendant, of which the its weight greater believe from jury, ‘find and tells . came before stop car . . evidence that the street up crossing crossing . . . . then started the railroad and . . engine . . .(cid:127) locomotive to cross the intersection * operator . approaching intersection . . then such and that approach engine, ear of such oblivious-of street engine engineer saw, on locomotive the exercise such to cross ordinary care seen about that the street car was engine approaching path approaching of the' locomotive and was operator car position peril, of imminent and that of the street thereto,- thereafter,' oblivious in time hand with the means safety given with to himself to have warning signal and others engine stopped or to have slowed down or in' time to avoid collision between said car and' engine, said loeoniptive . engine . . that the street car collided, as a re and that thereof, plaintiff sult injured, engineer and that the failed said signal warning engine sound a stop said or to slow down or engine your against” . . . verdict Rail should way Company though you “even should further believe find and *9 from the evidence, plaintiff’s injuries that were contributed to negligence of Kansas City Company.” Public Service We have a held that defendant can complain of given an instruction at the request aof codefendant which affects or to affect” calculated “was question liability the of his to plaintiff. the v. Line Red [Grimes Service, Inc., 337 743, Mo. 85 (2d) 767; S. W. Nafziger v. Barr Baking Co., 423, 328 (2d) 559; Mo. 41 S. W. Story v. People’s Motor Bus, 327 Mo. (2d) S. W. we As have heretofore 898.] observed the instruction against authorizes verdict plaintiff for n Railway the Company theory on liability of which had plaintiff rely upon abandoned and did not ground or recovery submit as-a of against Railway Company. It will also be in noted that present struction does not defensive part matter of the Public Company Service acquitting negligence of it contributing to authorizing collision or a finding that and omissions acts predicated requiring a verdict were sole cause collision of the two or right of the to sue favor Public Service alleged joint jointly singly, more or in one or more tort-feasors actions, solely right to .elect plaintiff is with and likewise pleaded grounds assignments negligence upon the case of against joint action to submitted each of the in a defendants liability plaintiff is restricted to the A defendant’s to plaintiff. given thereby must be determined and such an instruction part on the introducing submitting ground of codefendant liability upon by plaintiff not the mere relied or submitted for purpose and in an effort to have jointly the other defendant held it, liable respect with obtain may it contribution in to judgment, prejudicial we unquestionably “is think to the defendant against whom it We is directed. think it clear Public Company was to given not entitled this instruction question instruction “was calculated affect liability” Railway Company of the plaintiff. With this view unnecessary analyze for us to upon review and the evidence Railway’s further held, contention that if it be on the assumption that there was substantial- support the instruction, evidence.to Company to have entitled the instruction given, not, that there however, substantial evidence to' warrant against Railway and sustain verdict Company thereunder. A reading of indicates, very the evidence herein thinks, the writer clearly the plaintiff theory did choose to submit wh3r say exceedingly the most it is doubtful support that substantial therefor is to be found evidence. We complaint come now the Public Service Com against pany given request Instruction D-2 at the codefendant its
Railway Company. jury, This instruction told the if stopped found “that the street car was not (10) least ten not more twenty (20) than before reaching tracks, feet the railroad employee no of the Street went forward to the company tracks purpose railroad for the ascertain ing if a approaching, you railroad train was find further charge motorman in of the street car undertook to the rail cross immediately road tracks in front train, approaching railroad and as thereof, direct between, result there awas collision engine car and the train, railroad your verdict must be in favor of the trustees of the St. Francisco Rail Louis-San way Company.” will be glance It seen at a that this instruction.is plaintiff error as to but against judgment verdict Railway Company course complaining. pointed- is not It is *10 against out the that instruction does a not direct the verdict Public merely Company Service but authorizes a verdict favor in the hypothesized the Railway jury facts therein should find the question, is, made without contention is while the instruction that, Company, does Railway to since unduly sponsor, favorable the its against the in Company not a direct verdict the Public Service prejudice Company not the Service struction does Public have In of may complain. support defense it therefore and it cannot in Nafziger, supra, contention the rule well stated Barr v. is ‘‘ voked, follows: well a defendant will not be as It settled that is complain fav ground of an the that it too heard to instruction joint prevented against a codefendant, orable to its or that it verdict cases.) (Citing theory plaintiff both. the is on that the the This only prejudiced by one which one of the to error defendants allows escape liability (328 (2d) 41 S. plaintiff” its to Mo. l. c. W. 563). But, stated, complain
l. we before c. as have defendant can given request of the of a an instruction at codefendant affects plaintiff. Nafziger v. liability Baking the to question his [Barr Co., other cases cited, Was instruction supra.] the then liability” to question as “was calculated affect the Public plaintiff to ? The- Company require not Service instruction does jury Railway negligent find that Company to not was respects to it, contributing submitted to cause the negligence collision, that Service Company, hypothesized, collision, sole cause therein was directs but they Company return that must verdict for the merely part if was a there failure on the find that the Public Company comply require to with either the statutory bring the is, that it to ear to ments, failed street full at stop twenty more feet reaching least ten not than before the railroad employee track, Company that no of the Public Service or, for went ascertain if train approaching railroad track was ward failure requiring finding that either such was the proximate without Admittedly collision. motorman cause of the did stop reaching admittedly ten before car feet railroad track at least forward employee Company no to the rail Public Service went approaching. ascertain whether a The motor road track brought stop he the street to a six car full man within testified a point track at where he eight feet of railroad or approaching a locomotive headlight, lighted, of from either seen the south; he looked both listened north directions he train; he no whistle bell nor did a head heard see proceeded he to cross. There testi light; other crossing. going before mony stopped Appar car wras on the ently of the Public sole defense point stopped compliance which was a substantial car go failure of the motorman forward and that
with statute *11 proximate that, to the of the in track not cause collision was claimed, by he any not so have seen more than doing nor beard darkness, approach he did and the of the train in the without headlight lighted, being the bell whistle at without sounded negligent circumstances, the speed, rate the was sole cause of under by of collision. defense submitted the Public Service Com This was given pertinent parts which, of pany’s K-2, the more Instruction you omitted, “if follows: “Even qualification with so find” and like you . . . . not though find . . that the car should street was twenty feet brought stop to a at not more than full least ten and . an . . tracks . . and that reaching . the railroad before Company go the not forward employee Railway did of the Street ascertaining purpose the of of Railroad for tracks such yet . you . . approaching crossing, such if whether train was operator stopped . . . . . the car find . the of street ... . before the intersection entering .' . said car was ascertain whether train conveniently where could as place he than ten more approaching stopped he had car less nor as if said not twenty intersection, gone forward to from such than feet was tracks, you when street believe that said car the and if further . operator . . listened stopped . . . looked stop . . street approach of a train . the failure to and that twenty more than feet and the failure not less than ten feet nor ear directly . . . go forward to the of the railroad did not tracks you . injuries, plaintiff’s and if further find . contribute . ap operator car to see or hear . . the street failed . night headlight was proaching and that dark and that the burning engine, no on the railroad or whistle was not and that bell approaching engine, operator on sounded the street car degree highest attempting exercised the of care in to ascertain whether approaching causing ear to a train was street cross you intersection, and if further find and believe car street appliances condition, in good your and its were verdict should City Company.” favor Kansas be in Public There no negligence part contributory case. Plain this way was in no' at fault. Nor collision the tiff result of legal term. accident in the sense of that Indisputably the collision by negligence one or the caused other of the defendants concurring. negligence Company’s or the of both Public Service K-2, gist supra, we have out, Instruction set tells though” charge that “even the motorman in ear requirements comply statutory they did not with the if found hypothesized the facts to comply as therein and that his failure with statutory requirements proximate not cause of collision their be for the verdict should Public Service The Rail though interposed D-2 which Instruction way Company however against Company neverthe directing a verdict not effect, that' motorman did find jury, less tells admittedly command, statutory which he with literally comply negligence part on the not, that, disregarding any evidence did factor, their must be contributing “verdict Railway; inferentially implication thereby favor” *12 motorman, jury failure the imputation, telling the that and - proximate sole cause of the collision itself, in constituted the and (cid:127) alone Railwajr Company; otherwise the how could' that and absolved in Railway Company. to the the We are inclined think that acquit necessarily jury confuse on this tended to mislead and the struction by plain implication certain instruction issue and that its and the prejudicially to affect” the Com “was calculated Public Service K-2 to therefore Instruction pany’s defense submitted its and to constitute error it. as ap Company, Railway the
We mentioned that heretofore as negligence 1; pellant, plaintiff’s submitting Instruction claims error sought. against upon recovery The the it is instruction told charge employees jury, they that that the Frisco if found “you etc.) to freight (omitting find,” “if so” and so “failed a said to ring approached crossing bell their train failed as and crossing, it keep ringing until it had crossed to sound said' and failed they approached a whistle crossing and thereafter as said did not crossing, sound whistle at intervals until it said crossed said approached and that locomotive to crossing as their said failed headlight lighted, speed, have their to slacken and failed their thereof, if failure, any, plain because a of such and as direct result you you injured, injured, tiff was if find that she was will find” negligent agents, servants, etc., your the Frisco “were verdict against be must defendant”
Railway' Company points require the not out that instruction does jury neg the any of to find that the several omissions constituted ligence part on the advises a matter trainmen but them as negligence. of law viola that such failure It is conceded negligence per Though tion of a statute or a se as matter of law. allege to plaintiff’s petition duty seems a violation of to a the sound required by bell 4756, statutory Revised Statutes 1929, Section provision only applies to crossing of a a track over railroad public or a private “traveled road street.” crossing This the street ear tracks and track. The not railroad' railroad did a street, point. road highway ring cross at this So failure whistle, bell or if any, 4756, was not sound violation of Section supra. any statutory duty Nor was there to slacken speed. There ring bell, fore failure to the whistle or speed, sound would slacken negligence either such omission matter of whether law and conditions, negligence, existing under the circumstances have omission to jury determine. However the would be for would lighted crossing headlight approached as the locomotive negligence 1929, be a. violation of Section per Revised Statutes is, conjunctive, are se. The omissions stated in the charge train, failed railway employees, jury find ring to slacken bell, whistle, failed sound and failed headlight speed, lighted, approached to have a the train and failed crossing. says required were all the Plaintiff to find necessarily have enumerated and therefore must found omissions lighted headlight approached crossing, as the train was not negligence law, and, following as a matter of the instruc- which was “because to have a head- tion, to found that of such failure” injured.” light thereof, plaintiff lighted, “and as direct result are Appellant Railway concedes omissions submitted conjunctive says to the vital but when instruction comes separate as several various proximate matter cause it treats previously omissions and failures submitted and a verdict authorizes any one, more, against upon finding of such omissions was *13 plaintiff’s injury. cause proximate Having jury of told that (or omissions) if find the four failures submitted the instruction continues, failure, any, “and that because suck direct as of if ours.) thereof, plaintiff injured,” etc. (Italics result Appellant was must, that only, contends instruction and can be con- telling jury plaintiff that their strued as they verdict must be for any. failure, is, any find that one or more of the failures enumerated, proximate plaintiff’s injury. cause of It “any some) (or said does not mean all” “one but indifferently out ’ ’ apparent might lawyer of number. It seem or plain- to court any” here tiff used thé words “if to assumption avoid an of failure upon a and that consideration of the instruction aas whole was it require jurjr find; to to first, intended employees that the charge railway in (four) of to things failed do all the enumerated; and, second, proximately that such failure contributed plaintiff’s injury. to cause Since, worded, instruction is there 'appears to be some basis for the criticism that to calculated con- vey to a the meaning appellant it, plaintiff ascribes to doubtless, will trial, on another so frame it as to obviate that, as other, well as criticism. evidence, Plaintiff testimony had witnesses,: numerous
tending prior show to to injuries received -in' the' collision apparently she had been 'and good able-bodied in health, and that sin'ce^ years age she was thirteen she had done work, various kinds of domestic, as a in a salesgirl. waitress restaurant September On plaintiff collision a month before approximately '24, escape the automobile to moving from a jumped when she injured “gash in the she suffered a said companion. She aof man advances spent She scratched.” was “bruised head”'and back of-the a week so thereafter con time and at that days hospital in ten damages action for home. filed She her valescing at sister’s organs lacerated, injuries; internal head these alleging she sustained injured, sprain a severe spine back and displaced, injured and causing abdomen severe portion of the the lower left in strain However, plaintiff trial. without swelling.” The action was settled collision, fully recovered, to the date of the prior she testified that had injuries automobile. Follow jumping from the in sustained from the Independence to Sanitarium where she was taken ing collision Krimminger. Dr. He testified his care of placed in the she was ‘; detail, time, in follows: Minor findings injuries as to her bruised, leg immediately left be generally face, lacerations region ilium; the crest lacera to the óf hip low the lacerated right, paralysis ilium, bruises to the of motor the left tions of right right ankle; hip sensory nerves from lacerations void; side; inability to right on the marked muscles peroneal paralysis bladder; in parenteral, tenderness tenderness chest, general, extreme throughout small tenderness ’’ Continuing said, his he findings the back. statement there legs;” entirely paralysis that this “total paralysis “total of both days,” up hospital, about but when left the cleared 28, 1933, “she have complete on November control did not of her paralysis.” partial June, 1934, legs, she still trial had eight after the collision. about months Plaintiff adduced evidence weight, impairment tending show sensation, loss of that she had pain she work, back, unable to been suffered her that she passing no sensation of urine unable it, and was to retain she legs legs control of her were lacked that her weak so she support,” not “stand on them moving without about *14 the house she “to to a had hold table” chair and “most of she crutches,” the time especially used when she would leave the by house. One of the doctors called witness as said in opinion the “likelihood” of “disappear his the conditions described small;” ing rather is and her other expert. medical Dr. Thompson, said: “I believe she will have improvement some there going but a certain permanency” extent of and “I don’t believe will she entirely ever recover.” expert Plaintiff’s gave medical witnesses an opinion that in the collision plaintiff sustained a concussion spinal cord and that the inability to control legs, impairment her some extent sensation and other conditions above re mentioned therefrom. apparent sulted It that the foregoing sub constitutes which, readily find casual connec from evidence
stantial were injuries and conditions mentioned conclude and tion collision. from the by resulted and caused assignment remaining brings to consideration us This Plaintiff by made the Public case, this of error injuries, other as the result certain have sustained claimed foregoing review of this in the are not mentioned which collision and the collision case, between phase of connection. any causal On establish says not plaintiff did twenty-four days the collision after 15, 1933, which was November per Sanitarium, operation an to the admittance plaintiff’s testimony of the entirely from the clear Because is not formed. set we later operation, which directly about who testified doctor history done from the finding our of what was we out, take inquiry propounding given by plaintiff’s counsel in qperation is, this witnesses, that expert medical plaintiff’s to one of Fallopian part of the with a tubes appendix and “her operation * performed a Dr. Green removed.” Plaintiff stated ovary were Krimminger, whom testify. However, Dr. He operation. did oper in the assisted mentioned, that he stated have heretofore we it. He testified only testimony about gave the direct ation and follows: young lady this was in the “Q. time Now, Doctor, during the Yes, A. operation performed? sir. Hospital was an cyst “Q. appendix plus A. Her for? what was that And cyst ovary tubes, contained fluid. and this Well, operation? A. because “Q. for that reason What was the diagnosis of that nature. “Q. Yes, A. laboratory made? examination sir. Was Now, A. made “Q. of? Dr. Kirtshoner What that consist did diagnosis; appendicitis Acute with fibrous report operative this together ovary tubes, hydrosalpinx, means with an fluid diagnosis. operation cyst. operative That After cyst appendix by technicians.....The walls was examined showed, appendix were normal and moist somewhat partially length supply obstructed. One tube blood was of normal change . . pathological width and showed little . The other grown together ovary, had with the the tube a normal tube but had ovary enlarged appearance. large hemorrh- showed a cyst. age
“Q. Having girl this wherein mind had been in an accident engine car into a Fi’isco was run and she was knocked injury you unconscious suffered which she when saw immediately accident, her after the could and that accident would produced to make necessary oper- condition such as *15 this me I like to answer you pardon A. If will would ation? lady present following young when way. The here this condition hospital brought into she was or not was traumatic it —whether hard to state. is for me “Q. you that, Have on have been of opinion formed could it origin? Yes, A. have been.” traumatic it Cross-Examination.
“Q. Doctor, opinion majority it is pro- medical possible directly fession that it is not for trauma injury to the part appendicitis, to cause "Well, involved is not? A. don’t it I the judgment know physicians. about of other “ Q. know You don’t about that? A. I couldn’t swear that.
“Q. true, generally But speaking, it is appendicitis does injury? you pardon not come from A. trauma or If will the ex- pression, the only question Lord knows how that be answered. should “Q. something true, people appendicitis But is this because gets wrong appendix you with the is much can about as depends many things. state it ? A. a great about That on
“Q. you appendix Yes, Did see her after it was taken out? A. sir, I removing assisted it.
“Q. anything Was there appendix after about looks it had been taken injury out indicate received? A. had been Well, I didn’t examine it for no, sir. that — “Q. You No, didn’t see ? A. sir.
“Q. anything didn’t see appendix You about the and the sur- organs rounding you you when took it out led believe the appendix injury? had A. received That I can answer. only thing appendicitis that causes supply— distracted blood which we this case. ' “Q. you How that about don’t know? comes A. No. «sir.” stating operation After the nature done, and what we above, plaintiff’s mentioned plaintiff’s expert counsel asked witness, medical Thompson, question: Dr. “Now, this with Doctor injury (the appendix, this ovary tubes) diseased Fallopian, region back, evidence of a severe blow in this body and in the produced could that have the condition such as this necessitated speculative. Q. operation? Might A. That have? I it A. say Q. wouldn’t it or wouldn’t. would Could produced it have ’’ ?it A. I am not . . . able to tell about that. One of Company’s expert defendant wit- medical nesses, Neal, questions Dr. following gave was asked the following thereto answers cross-examination counsel for Railway: “Q. you Have hospital read the operation ap- record pendicitis Fallopian cyst? Q. A. I have. Assuming
676 necessity for your opinion was the true, are in stated facts therein cross- origin? A. It was On operation not.” that traumatic following plaintiff, for Thompson Dr. counsel examination of hydrosalpinx? produce a “Q. injury trauma Could occurred: abdomen and injury to the an walls Not unless there was A. contents.” abdomen injury evidence an to was no that ivalls There present doctor who was and assisted in disclosed. Nor did the experts testify operation any that if dis of the medical nor ovary Fallopian from trauma had resulted appendix, tubes eased evidencing certain conditions in the collision or violence received present same this have were in instance. would existed and alleged to evidence, relating these in have verbatim the set out ¥e upon juries, plaintiff plaintiff relies. upon which The burden was The adduced the causal connection. sum of the evidence establish plaintiff meet that burden is collision sustained bruises days twenty-four body; later a diseased about condition of the exist, appendix, Fallopian ovary tubes found to together ovary;” grown with the the appendix, “one tube had Fallo ovary removed; pian an were the Doctor plain tubes and who treated operation opinion tiff and in the to venture assisted refused an “was say only condition traumatic” such opinion would in his origin.” such condition “could been of traumatic constitute evidence tending This did not substantial to show causal Upon any connection. evidence inference jury this or finding by the organs diseased condition of internal these resulted from external trauma or violence received be collision would mere guess speculation.. opinion Krimminger of Dr. that such origin” “could have condition been traumatic “no more is than possible such a assurance” that result was and was not substantial evidence that such condition result did from external trauma collision, and, violence noted, sustained as we have there was tending no other sufficient evidence such show cause. v. [Kimmie Assn., 596, Terminal Railroad 334 Mo. 66 (2d) 561; W. S. Derschow Co., 63, v. Adelsberger Louis Public 339 Mo. St. 95 (2d) S. 1173; W. Sheehy, 954, v. 332 Mo. 59 (2d) S. W. 644; Cox v. Co., M.-K.-T. 335 Railroad Mo. (2d) S. W. 411.] At the conclusion all evidence the defendant Public Service Company requested, but the court the' refused following instruction telling jury, K-5 numbered “that case is not entitled recover on account of operation involving the re- appendix, cyst, moval of Fallopian her- or her tubes, nor on ac- making operation of the conditions such necessary.” count It fol- that, since no sufficient and lows substantial evidence was adduced tending 4o establish the causal connection between the conditions re- en- collision, the defendant was the instruction and to in ferred be error. must refusal thereof It the instruction and titled to injuries alleged into consideration took these assumed that injuries hardly be doubted that damages it can assessing damages allowed. There augmented considerably a nature a remittitur. arriving at therefore basis and the cause judgment must reversed noted For the errors Hyde Brad- so ordered. defendants. Tt to both remanded as *17 n ley, CC., concur C., Ferguson, opinion foregoing PER CURIAM: The concur, except judges opinion court. All the adopted as the o.f cause court when not member Douglas, J., voting because submitted. Corporation, and John Inc., Louis-Southern, C. McInnis v. St. J. Corporation, Inc., Louis-Southern, Defendants, Oertli, St. (2d) 113. Appellant. W. S. One, July 1937.
Division