Brown v. Springfield Traction Co., 141 Mo. App. 382

Brown v. Springfield Traction Co.

141 Mo. App. 382 | Mo. Ct. App. | 1910

COX, J.

The assignments of error are that the petition does not state a canse of action and will not support the judgment, and that the court erred in admitting incompetent testimony on the part of the plaintiff, and in excluding testimony offered by defendant. That the court erred in refusing a peremptory instruction, asked -by defendant, directing the jury to find the issues for the defendant.

1. We think the petition well enough and shall rule the first assignment against the appellant.

2. As to the action, of the court in admitting and excluding testimony, we are cited in appellant’s brief to the testimony of Dr. Coon. By reference to the abstract of record we find that the first objection to his testimony was made when he was explaining the location of the muscles that control the movements of the fingers and the nerves which supply those muscles. The plaintiff had testified that since the injury she could not properly use two fingers of the hand. In view of this testimony of plaintiff’s, it was eminently proper to permit Dr. Coon to explain the anatomy of the hand, and show how such want of power to use these fingers might result from an injury to the nerve located in the region of the bone fracture which she claimed to have received. Dr. Coon also testified that when he examined the plaintiff she complained of not being able to use those two fingers. This evidence was clearly competent because necessary to enable the physician to properly diagnose the patient’s condition at that time. [Brady v. Springfield Traction Co., decided at this term and cases there cited.]

Defendant’s counsel, after having cross-examined Dr. Coon as to what was said in certain medical books, offered to read from these books to the jury. This was refused, and is now assigned as error. In case of State v. Soper, 148 Mo. 217, 49 S. W. 1007, the trial court had permitted the prosecuting attorney in his closing argument to read from certain medical books to the *385jury and that was assigned as error. Tbe court said, pages 235 and 236, that it was within the discretion of the trial court to permit the counsel to read from the writings of eminent physicians during the argu-, ment to the jury, hut that it could not he demanded as a matter of right. In the later case of McDonald v. Railroad, 219 Mo. 468, l. c. 492, 118 S. W. 78, the ruling in the Soper case was criticised, and from the McDonald case, as well as from authorities of other States, we glean the correct rule to be that an attorney may use a medical hook to aid him in framing questions to be asked of a physician testifying as an expert, but it is not permissible to read from such books to the jury, and the court did not err in refusing permission to defendant’s counsel to read from such books to the jury in this case.

3. As to the refusal of the court to peremptorily instruct the jury to return a verdict for defendant, it is sufficient to say that plaintiff, by her testimony, made out a case and it was for the jury to weigh the testimony and determine the issues submitted to it. The instructions in this case were very fair to the defendant, and we have found nothing in this record to justify us in interfering with the judgment of the court below, and it will, therefore, be affirmed.

All concur.