162 Mo. App. 90 | Mo. Ct. App. | 1912
This is an action for damages for injuries the plaintiff alleges he sustained by reason of the negligence of the defendant. There had been a former trial of the cause wherein the plaintiff recovered judgment and from which the defendant appealed to the Supreme Court. The Supreme Court reversed the judgment and remanded the cause for a new trial. [See Black v. Met. St. Ry. Co., 217 Mo. 672.] After the cause was reversed and remanded the plaintiff amended his petition and on trial anew again recovered judgment .from which the defendant appealed to this court.
The allegations of the amended petition are to the effect that while plaintiff was a passenger on defendant’s street' car, and at or near the intersection of East Nineteenth street with Main street in Kansas City, Missouri, “on account of the negligence of the
The respondent has failed to file any paper that might be called a statement of the case as the rules of practice require. The statement of appellant, while quite brief, we presume is a true statement as it is not contradicted by respondent. It is as follows: “The respondent introduced testimony tending to show that on January 18th, 1905', about one o’clock in the afternoon he boarded one of defendant’s electric street ears at Nineteenth and Main streets, intending to go east on Nineteenth; that just as he got on and before he had gotten inside of the car it started up; and, that in get
.“Appellant contends that respondent could not have received an electric shock in the manner that he claims to have- done, and that whether he did or did not, that no electric shock that he could have received at that time could have caused his injuries.'
“Respondent’s trouble is designated by his witnesses as traumatic neurasthenia and whether or not that could have been produced by an électric shock such as he claims to have received is one of the contested questions.
“During the progress of the trial the appellant offered to introduce much evidence on the above question in the form of experiences, that is offered to show that electric shocks such as respondent claims to have received (although not from the same cause) are of frequent occurrence; and, that the persons receiving them suffer no such trouble as claimed in this case. Such evidence was rejected by the court.”
In order, however, to obtain a full understanding of the case it is necessary to examine more particular
Expert witnesses of defendant testified that in their opinion under the conditions the plaintiff could not have received the electric shock of which he complains. In order to get a proper understanding of appellant’s contention that the court erred in rejecting the testimony of experts offered by it for the purpose of showing that if plaintiff was injured at all by an electric shock, it could not have had the effect upon him that he claims it did, it is necessary to state some of that proposed. Dr. Iuen had wide experience and had treated many cases where the patients had received electric shocks. He was asked: “I will ask you, doc
The original petition on which the cause was tried and which was appealed to the Supreme Court alleged specific acts of negligence as the cause of plaintiff’s injury. The judgment was reversed upon the ground that the plaintiff had failed to prove the acts of negligence alleged and that the instructions based upon his right to recover should not have been given.
It is urged by appellant that the court committed error in overruling appellánt’s motion to require respondent to make his petition more definite and .certain. In support of this contention we are cited to Orcutt v. Century Building Co., 201 Mo. 428; Roscoe v. Met. St. Ry. Co., 202 Mo. 587, and decisions from other states. These cases state the rule that, “A general allegation of negligence is all that is required in cases of accident, where the relation of passenger and' carrier exists. This general allegation of negligence is permitted upon the theory that that instrumentalities are in the hands of the defendant and he knows the conditions thereof, whereas plaintiff does not or may not know them.” It is further said: “But, if the plaintiff by his petition is shown to be sufficiently advised of the exact negligent acts causing, or contributing to, his injury, as to plead them specifically, as in
It is not to be denied that the plaintiff being a passenger bn defendant’s car, if he was injured while he was such a passenger, had his cause of action against the carrier for such injury, and that he was not required to allege a specific act of negligence upon the part of such carrier, but might recover on a charge of general negligence. And it cannot be denied that the amended petition only contains a general charge of negligence. But we presume that the appellant’s point of view is, that as the plaintiff had tried his case and testified as to the manner in which he was injured and had so stated in his original petition that he is compelled under the rule stated to charge the acts of negligence specifically. The language of the decision does not authorize any such construction. As the Supreme Court had decided that he had not proved the specific acts of negligence charged although plaintiff detailed the manner in which he was injured, his counsel thought best to amend the petition, so that he might recover on the theory of res ipsa loquitur by, proving the injury and casting the burden upon appellant to explain the accident. Plaintiff is not precluded under the code from making the amendment, as his cause of action is not thereby changed. How can it be said that plaintiff could not recover on his evidence, because he could not have been injured by an electric shock in the manner he says he was? All plaintiff had to prove was that he was injured by an electric shock. The manner in which it was communicated to him was. immaterial. If the manner in which he says he received the shock was improbable and beyond all dispute could not have so happened, still, if notwith
It is urged that defendant had the right to show by experts that in all their experiences they had never known of one instance where a person had received an electric shock that did not prove fatal, that left any after effects on the nervous system, and that the court committed error in refusing to admit such evidence. Mr. Wigmore discusses the question at length and he sums up his conclusion as follows: “Suppose that the proponent in the issue is offering only to show a capacity, i. e., an occasional possibility — of producing the effect. Obviously, it is here logically of no avail to produce against him instances in which the effect was not produced. They do not meet his point; for it is quite consistent with the capacity or possibility of producing the effect that there should be many instances in which the effect would not be produced; for instance, if the proponent has evidenced by one or two instances the capacity of a pistol to carry two hundred yards, it is logically of no avail for the opponent to answer with a negative instance (or instances) in which it has not carried thus far. Logically nothing short of a universal negative will suffice.” However, he states, “That assuming the proponent’s witnesses are not to be believed, and, therefore, that there is no affirmative instance of the alleged capacity in the field, even a single negative instance may suffice to show the non-capacity or impossibility on one condition, namely, that it is made equivalent to a universal negative. . . . For example, one instance of a pistol’s not carrying 200
Applying the rule as thus stated which we believe to be the law, it does not sustain the defendant’s theory. The fact is established by the verdict of the jury that the conditions did create the shock, which if true, cannot be successfully disproved by any number of instances in which no such results followed. If the capacity existed for giving the shock to plaintiff, a thousand instances where it did not produce such an effect would prove nothing. But from the very nature of things, it is competent to show affirmatively by instances, capacity. For example, it was held that it was admissible to establish the intoxicating effects of a beverage sold by defendant to prove that it had that effect upon the witnesses who drank it, [Knowles v. State, 80 Ala. 9; State of Kansas v. Adams, 44 Kans. 135.] For the purpose of showing deceased did not commit suicide by shooting himself with a pistol as alleged by the insurance company, it was competent to prove by experiments made in discharging the same revolver loaded with similar cartridges, etc., that the object fired at was found .to be singed by powder. [Beckett v. North-Eastern Ass’n, 69 N. W. 923.] “In an action for the. price of a lot of frozen fish, the defendant contended that they were worthless, and had been thawed and frozen several times while in the plaintiff’s possession,' and put in evidence of the state of the thermometer during this time. Held, that the plaintiff might in rebuttal put in evidence that other fish of a similar description stored in the same
We believe the case was properly tried and that there was- sufficient evidence to sustain the verdict. Affirmed.