*1 issues be a more submitted and usually narrows usually requisite makes issues facts these statement of the specific object instructions should be to make jury. The clearer to the suggest that language can make them. We further issues as clear as correctly charged against technically is not negligence place in reasonably safe a failure to furnish described as negligent to do giving of a order work, really the but is which to Schaum v. Southwestern unsafe manner. specific thing [See was not place 78 W. The Co., Bell Tel. Mo. 439.] furnaces turned off. done both this work to unsafe for Ferguson and remanded. judgment the cause reversed and concur. Sturgis, CC., C., adopted by Hyde, foregoing opinion CURIAM: —The
PER judges All the concur. opinion of court. as the Appellant. Marguerite ciation, Asso v. Railroad Corbett Terminal (2d) 97. 82 S.W. April 17, One, Division *2 J. L. Pierce, T. M. Howell and for appellant. Walter N. Davis Hullverson, Perry Everett Vernell Flynn <& Mason re- spondent.
STURGIS, C. This damages is an action for in- personal juries consequence plaintiff received grade collision at crossing riding between automobile in which she was and some moving freight pushed cars defendant’s engine locomotive on this court that was before case track. the same its railroad S. W. 910, 55 Association, Terminal Railroad in Cox v. Appeals, Court of St. Lonis certification from on is caused change The in the name of (2d)W. pleadings Both the pending. marriage has been her while case wishing to those in the case mentioned the facts are stated we opinions, from which read those all case should know about the obtaining on first trial learn that the successful both appealed, and judgment, which defendant a verdict and reversing re concurred Appeals and this court the Court of by the committed of errors new trial because manding the case for the humanitarian submitting the case to the on trial court where in Illinois State but not applied in this negligence rule remand injury After such reversal occurred. the accident and City St. Court of ing again in the Circuit the case tried substantially evi the same and with pleadings same Louis on the appealed. has again and defendant prevailed dence. The has again relates to the question appeal raised principal being urged now that a demurrer instructions, it not as the sides concede that have been sustained. Both should substantive law Louis, Illinois, the injury in East St. occurred respective plead- in their party each set forth applies state At the last trial applicable. deemed ings that state the laws of negligence caus- allegations all defendant’s her plaintiff abandoned that num- crossing except injury railroad petition, 7 in her as follows: bered crossing; grade gates said crossing were installed at the “That place but ordinarily maintained at said a watchman was *4 at no watchman aforesaid, collision there was at the time of the said crossing operate there to a warn- that was no one said and there the any cars, and defendant train or that ing approach bell the of of gates operate, lower or raise the said there to provided no one crossing, highway the said approaching or cars were or while trains the Illinois Com- all in of rule of of violation effect, providing in full and merce Commission then and there force as follows: “ grade crossing at a ‘Hereafter are installed where railroad, highway- any or crossed the tracks of any where street is gates operated shall of period such be maintained and for the full absolutely twenty-four hours; provided cer- each in cases where is period that will at tain be no traffic on the railroad for a of there twenty-four any period, gates in which least hours in hour the may operated only during attendant, cases be left without and periods twenty-four hours, operation.-’ such in the trains as are crossing operated “Plaintiff states traffic was at all that over said hours of the that knew exercise of due day, and defendant or the care would have known thereof.” frequent ad- plaintiff wisely the heeded the On the submitting the dangers as the a case this court
monitions of damage the only, at instruction was done jury a measure of as on gaye this the instruction: trial, and first asked the occurrence jury the that at the of “The instructs time Court provided follows: law the of question, the of State Illinois “ grade cross- gates crossing installed at ‘Hereafter where are any rail- highway by the tracks of ing any is crossed where street period the full for road, gates operated shall be maintained and absolutely twenty-four hours; where it is provided each cases of period railroad for that there be no traffic the certain will gates in which any period, hour the twenty-four least six hours in at during operated may cases be an attendant and left without twenty-four hours, operation.’ periods in as trains are the observe you any that failure to “The further instructs negligence. law would be you you if
“The find and believe Court further instructs that said across from the evidence plaintiff that was driven cross- evidence, and that place railroad mentioned tracks gates railroad on said there, were installed and that traffic moved crossing plaintiff during was at all day, hours track; duty defendant’s the said it then became maintain twenty-four hours each operate gates period there the full day, you and if evidence that further find and believe from gates full operated period said were not for the maintained twenty-four you believe hours, each and if find and further exercising ordinary plaintiff that the said time was at care struck safety, for her own and that automobile injured (if you so cars evidence, mentioned in find) gates failure, any, a direct result to-have said main- operated time, tyou tained amd there said then Court instructs your be favor that to recover and verdict must entitled ours.) (Italics against defendant.” are assignment instruc error Defendant’s tion is erroneous its first the instruction, insistence quoting Commission prescribed by the rule the Illinois Commerce crossings in operating crossing gates haec verba at railroad Illinois, ac telling jury that such was the law where occurred, would any cident failure observe this rule and that interpret left law to itself negligence, suit to construe jury might without guidance kind, have concluded and the be regardless violation of the rule was liable *5 ing injury. ¥e confess a dif proximate plaintiff’s cause of To ficulty reasoning understanding point. this defendant’s my duty by operating mind this as to imposed on defendant rule simple needs crossing gates grade that it crossings plain at is so and intelligent juror Certainly every interpretation construction. no here, the from tbe evidence adduced knew, and if not be so learned crossing gates crossing, and purpose installing at a railroad operated gates open were this indicated that ivhen and the there danger cars approaching trains or was no quoted in danger. warning of So the rule of law closed was a such installed, required crossing gates, when once the instruction six period a of at least operated be at all times unless there was traffic absolutely certain that there would be no hours when it was during might cease. period operation on the railroad and plain or if rule more understandable We doubt we have made the following the by explanation. true that the statement this law would “any observe this quotation of rule that failure to standing alone, but general when negligence” is and too abstract specific by if followed statement, itself, correct in this abstract particular ease of this applying statement the law to the facts facts, proved, have been telling jury particular what found to This instruction is not finding form plaintiff. will warrant v. jury. likely objectionable when to mislead [McGrew 53; Kleinlein 19 W. Co., 582, 589, Missouri Pac. Railroad 13 S. W. And since Mo. Foskin, v. 648.] “plaintiff was requires jury specifically to find that instruction gates main injured have said result the failure to as a direct that the time,” can it be said operated how tained and there said proximate was the jury required failure was not to find that such n point against defendant. cause? We¡rule telling instruction is erroneous It is next insisted that this Commission of Illinois relative to that the order of the Commerce crossings grade set forth therein operating at railroad Illinois, injury occurred, June accident and the law of when this statute, petition under pleaded in her our 1928. Plaintiff had so every prescribed that, “In Section Revised Statutes United state of the action wherein the law of another proceeding take shall pleaded, America is the courts of this State States of judicial decisions of said judicial public notice of the statutes neg grounds alleged had as one of state.” Plaintiff also Louis, City St. East ligence ordinance of the a violation of an cross backing occurred, as over a street accident cars where the alleged answering defendant, lights, charge, without annulled made invalid or ordinance was in its answer that said Act Legislature Publie Utilities the enactment the Illinois vesting right Act of Commission Commerce in the crossing railroads regulate streets to control and withdrawing powers Commission that state Commerce curing the defect acting by ordinance, from cities thus ruling construction petition respect; was the in that that such Village of Atwood Supreme Illinois in such acts Court of *6 978 1925), 24, April (a 425 316 Ill. decision rendered Co.,
v. Railroad 402. As Chicago 318 Ill. Railways Co., Co. v. Trust and Northern judicial the laws of takes notice are court, pleaded, when same legis- Illinois, by in thereby showed that Illinois, the of by the Commerce prescribed rules made and act, orders lative the at travel safety to insure promote that state to Commission of law, of and effect crossings the force over railroads had public street Commerce Com- Illinois 2 General Order 106 of the of and that Rule No. Instruction plaintiff’s in by recited plaintiff and pleaded mission that also thus shown Illinois. was 2 in fact law of the an- matter was relating to this same St. Louis East ordinance of mentioned Illinois statute the inapplicable nulled and made city ordinance. of such recover for a violation that could court, in this its brief first time asserts, for the Defendant now of attention the having called the pleaded same or without general statement by the any way unless court thereto reading to giving erred trial, that for new motion instructions, illegal prejudicial misleading, “erroneous, imposing by plaintiff, pleaded 2 106 Order that Rule of General crossing gates at having operation duty of on defendant injured, in fact plaintiff was crossing time of law Illinois at effect as the of force and 106 General Order of rule and injury, 1928, because such June 4, many years promulgated enacted the Commerce Commission 119 Commerce Com- Order later General previous was applicable declared Illinois, June mission made dated of villages incorporated cities, crossings of only to outside road grade protection of cross- and towns the towns, that as to cities April 24, 1925, municipal ings ordinances on maintained under the Commission. further order of maintained till continued and 1925 had year 119 General Order of Defendant that this claims subject crossings in cities and towns making the effect of railroad exempted such by city ordinances and regulations provided to the 106 2 Order General of crossings provisions Rule from the contention, by plaintiff. Defendant’s invoked Commerce Commission That laws of Illinois it, this: as we understand amounts to police make power exercise of the municipalities vested in grade crossings safety regulations governing of railroad needful Legislature and 1921 the therein; that later the Acts of police Commission and vested this that state the Commerce created municipalities power solely body deprived power in that character, as held enact enforce ordinances of state; Commerce Commission exer- Supreme Court of that including by enacting Rule power cised this which had the force and effect law pleaded and which requiring operated crossings; railroad to be Village case, Supreme when the in the Atwood Illinois Order General 1925, that this Rule April 24, supra, held city all annulled superceded and had the Commerce Commission Com safety crossings, regulation for the railroad ordinance June power enacted of its in the exercise merce Commission city or all in force put again which 25, 1925, General Order *7 law of status of the and that such was the subject, on that dinances regula city ordinance Such this accident Illinois when occurred. city not as law, tions, however, in force and effect as would be adopted regulations and rules city, but as ordinances enacted police Commission under its put the Commerce force powers. appeal is whether presented here court this
The
this
119
any
thing
judicial
such
as General Order
can take
notice of
of
and its force and
effect,
Commerce Commission
Illinois
of the
state,
being pleaded in
being
without same
part of the laws of
any
trial court
called thereto. The
way or the attention of the
think,
require
trial court and this
pleadings,
are sufficient to
we
knowledge
legislative
Illinois
judicial
that the
acts of
court
take
police
Commission of
state
have
in the Commerce
vested
enacting
safeguarding travel
power
provisions for
on streets and
of
crossings
power
highways
railroad
withdrawn that
municipalities,
that such Commerce Commission
this
exercised
2
including
106,
Order
Rule
thereof.
power
enacting
General
way
allege
pleadings
But
in no
mention or
that General Order
law
119,
any
provisions,
of
is the
of
or had
effect
or
its
Illinois
of
2
modifying
annulling
provisions
or
of Rule
of
law
take
general
106.
of
is that courts of one state do
rule
(23
p.
judicial
J.,
the laws
a sister state
C.
sec. 1948,
notice of
133),
131,
1950, p.
and such
the law in this State
and sec.
.was
806,
in 1927 of what is now Section
Revised
prior to the enactment
enactment
law
Statutes
Prior to the
of such statute the
of this
governed
law
was that when a statute or
of a sister state
or
State
State,
pending
in an
in a
was vital to
issue
action
invoking
must
party
plead
prove
statute
both
such law.
such
Co.,
542,
219
case, supra, overlooking we said: are not “We the Act of now providing that, prop Section Revised when Statutes erly .pleaded, judicial our shall public courts notice take of the just statutes of other states. previously as essential now as essential a cause state when same is from another plead a statute merely proof dispenses with formal action, the statute judicial knowl- requiring courts to take the same at the foreign such edge Unless if there be such. pleaded of the statute We application.” has statute no properly pleaded, statute is law pleading readily proper agree that statute the under our requires judicial courts take notice another our state state, such but also of the law a statute of itself, construing law judicial interpreting decisions such state (2d) 873, 662, 21 W. Railroad, 323 Mo. v. statute. [Ramey So, 877; 40 S. W. Goltra, v. Menard 1053.] creating judicial of Illinois notice of the statutes therefore, we take investing the Commerce Commission of that state and crossings, regulate safety of railroad police power to exclusive heretofore Supreme of Illinois in the cases held Commis- Illinois Commerce cited, and of General Order operated at all sion, including requiring to be Rule *8 having times, pleaded. Illinois But provisions law been such notice require judicial courts of this State to take does not the General general Commission, of other Commerce such orders of the way. That different 119, pleaded any Order was in a which was statute, having or the force and order the Commerce Commission judicial knowl- statute, within effect in order to come our edge says far as pleaded. that, have Defendant “So should been cities, villages it is incorporated are evident concerned, towns longer 106, repealed is 2, the General has been no Rule Order right in case in force. Plaintiff recover this predicated has to true, upon repealed.” a law has been If such be of Illinois that brought then result was about enactment later law- such of a having pleaded. that effect later law should have been such significant is
It which 119, also that while defend- ant greatly now insists modified Order annulled or General all, was effect, in force and if at when this case tried first pleadings time on the same as here court and before point Appeals appeal, St. Louis Court of on was not then sponte raised either counsel such courts or the court sita judicial should law take notice that under the of Illinois the time negligence predicated accident the failure could be operation have in to its at the place of the accident.
We also think that this case falls within that class of cases in required judicial which courts are to take of matters such notice judicial as this when such is notice invoked and the court’s specific Century attention is thereto. called It is said Baldwin’s Edition of Bouvier’s Law Dictionary, page to courts tak relative judicial unacquainted notice of certain kinds facts: “If fact, may any refer or person any document or may thereto; satisfaction relation or for his reference book or call- party and until the judicial notice thereof unless take refuse to book document or produces ing upon him take such notice is Corpus Juris, 2005, page 172, In section reference.” or knowledge judicial need within realm of “While a fact said: yet suggested presented or alleged it must be proved, or not be matters of instances. Some way, at least some in some the court in the present self-evident as to be ever knowledge judicial are so any point to naturally decision of they enter into a mind, so that which, things But there are other they application. which have judicially notice requires law a court policy, the motives of from It is ignorant. reality it knowledge of, which but of or have advantage knowledge of that litigant desiring duty of the suggest judicial take notice not bound to The court is it to the court. by counsel or so either upon not called to do a fact where it is is one to which it other introduced some facts Christy ordinarily In be directed.” would not mind of the court 191 S. W. in con- Ry. Co., App. v. Wabash knowledge taking judicial sidering of the court point was when the Interstate Commerce Commission order of said: time, the court Appeals in the Court of raised public policy, courts take necessity, as well as motives of “From judgments must law, judicial general public and their notice not. laws, to their attention or supported by such whether called policy, motives of things, which, . But there are other of, notice, knowledge requires judicially have law a court to litigant duty reality, ignorant. of a which, it but suggest desiring advantage knowledge to the court of that examining proper sources for actual and to assist the court . -. . apt is an illustration information. instance litigant requiring wisdom of the to invoke the court’s *9 of the rule judicial knowledge. particular A Rail- order made the Interstate reasonably thing which could road Commissioners is not a a court thereto, means possibly know unless its attention was called and the afforded, if ascertain whether such order required, for the to this, orders, in fact in have existed. But addition to these as we said, court, they never were mentioned in the trial nor were referred court, bring day to in this and to them into the ease at this late would ap- violate determined, the rule this State that a case must be on theory peal, presented on the same trial the court.” thing present In the case the of there as a the of Illinois Commerce Commission and its presented and in its printing force effect was defendant brief filed copy here a certified of such General Order not and only judicial knowledge asks us to take the of same but convict to doing court of so. error not We decline this. to do
(cid:127)982 assignment the court of error is that second Defendant’s plain state to what permitting Dr. MeFadden to the “in
erred complaints as her condition and the doctor to tiff 'bold said ’’ her; arguing point and the said doctor examined objection exception defendant, of the says: “Over the plaintiff’s complaints, com testify to permitted Dr. MeFadden We that defendant plaintiff.” think municated to said doctor objections of its accurately the nature and extent has thus stated so Dr. MeFadden’s and when exceptions saved to evidence made and Me Dr. cannot be sustained. assignment of error the measured expert he qualified and testified that examined as medical Fadden law question. We think the treated the accident after expert give opinion his may in evidence physician that a is settled his the his founded on or on patient, condition of observation of the And subjective symptoms, or both. patient’s present statement testify only what he may not giving opinion physician his present symptoms, but patient him about but what the told observed to patient respect with may give in not evidence statements surrounding past condition the circumstances physical his or her injury received. injury or manner in which the [Adolph Magill 255 W. In v. Boatmen’s Brown, S. v. 947.] negatively to 232 W. rule stated Bank, Mo. is testify competent expert as physician not the effect him to statements the made the loss blood what him. giving In pains prior suffered time she consulted with only opinion may not what he but what testify his he observed testify symptoms, he present told about her but cannot patient him past physical respecting him her condition for that what she told quoted stated hearsay. approval mere The court there rule authority Railroad, App. v. Mo. l. c. in Gibler may give in his Evidence, physician “that a Greenleaf on expert opinion patient, the condition of founded on observa his present subjective patient’s symptoms, or on statement of tion testify both, may giving opinion physician his what him patient of what he told about observed, but symptoms.” parts perhaps true that some state injuries MeFadden, suffering made Dr. ments as by him, past physical testified to covered her condition and suffer objec present, rather than the but so that is within assignment tions made in the trial court We of error here. might thought jurors likely say also here that if defendant were believe that Dr. MeFadden’s statement what the told injuries suffering him as to proof her then would be taken injuries truth suffering, the jury should been have *10 instructed, requested, contrary. so to a physician To allow plaintiff what to narrate told him suffering as to her then and .hearsay but, against evidence, injuries exception an to the rule is however, can, being cannot be excluded. The admissible, We legitimate by instruction confine such evidence to its purpose. presenting also its medical evidence observe that defendant injuries plaintiff’s suffering pursued same method injuries having plaintiff the doctors tell what told them as to her suffering they well as their what learned own observations investigations. assignment remaining error is verdict that
judgment $12,000 for a should excessive and that remittitur required bring granting a it within-reason a condition trial. new At the first trial returned a verdict for $12,500 court, trial, the trial on motion considered for new required plaintiff judgment the verdict excessive and to reduce the $7,500 by entering a price granting remittitur as the of not then ground. a new trial on that Plaintiff so entered the remittitur and question that was not before the Court Appeals or this court on appeal the former unless such $7,500 court then considered whether was excessive. The evidence relating question here to the na injuries ture plaintiff’s and extent of received at the time of the injuries accident, the after-effects of such plaintiff’s health and ability living, to earn permanency of the conditions result injuries large up part makes record .the A pages. large about number of experts, medical about equal number on each side, phases testified on various case. quite give out of the summary even a of this evi dence will general and we make a few having observations after read and arguments reread same and the based thereon. think We can correctly say we received a shock severe when head struck the steering wheel of the automobile at the first impact freight against car same, and when the car stopped and plain attempted tiff get out of the caught automobile her dress in some manner dragged and she ground on the some distance reason freight pulled car opposite direction. Plaintiff received bruises, especially above hip and on the leg, left became temporarily unconscious, and was then taken good hospital Bast St. Louis near 1928, plaintiff place injury. of her time, At June twenty-one years old, unmarried, and working as a house having maid and the care of family children for a Chicago, earning per $18 week. previous She was in good health. There no doubt good received medical treatment and care competent doctors hospital. nurses at A careful examination diagnosis having condition reference to her com plaints was made with of X-rays, aid etc. The concensus of the evidence of those attending her there is nothing of a serious nature was discovered and after days’ three’ or four treatment *11 discharged went her
plaintiff hospital was from and she to sister’s family called physician in St. There the home Louis. sister’s was months, or three weeks her he did so for some five six to treat calling by her at the doctor’s office the rest of the house and evidence, During time, according her her doctor’s time. this to much, any, work. then physically able to She she do was Chicago employment maid with and resumed as house returned to her being salary per of $12 at a but family week, the same reduced washing ironing. heavy She continued work such relieved of having till accident June employment 1930, the occurred appeal and August 6, 1931, pending the married former 1928. She years last trial. is no medical evidence nearly before the There two working Chicago in after this condition while physical to her evi- living her there. The medical husband or while accident some she in St. Louis her condition while remained to dence relates her to following the accident and examinations made six months April, All shortly present trial before injury any bone. no or received fracture shows that while was (including he his substitute of the doctor The evidence in St. Louis absent) she was plaintiff while temporarily treated who her injury examined her and who six months for five or after. time of the shortly trial and doubtless present before the gave more serious condition much December, her indicated. He said she had a dam- hospital than the examination frequent causing men- unusual and too aged kidney and disorders existing at the condition still found this and he struations thought a con- he she received trial; conditions that from the causing nerve nervousness and in the accident cussion of the' brain feeling atrophy resulting partial disorders, loss of suffering that at this trial was from these leg. He testified she left system injuries: (1) Injury indicated nervous permanent leg; (2) sensory changes injury to the by the reflexes and region; (3) by spasm the muscular the sacroiliac evidenced back injury menstruation; (4) injury the womb evidenced abnormal kidney history blood now her shown there motion, appointed urine. The on defendant’s court, albumin shortly trial to make an examination physician before physical physician condition and ailments. This plaintiff’s judge suggestion he was selected the trial and there is no competent, thorough fair. disinterested and He made occasions, giving particular examination on two attention complaints. He was called aas witness nothing and testified that he found to indicate suffering injury malady, present serious past; normal, well-developed woman; she was a congenital that she had a malformation of sacrum, the bones of the making not serious, but her if natural. He admitted that injury susceptible to than more aggravated by auto- might have been and womb troubles nervous accident. mobile merely might line, but would along this Much more be said on a careful consideration prolong opinion. We have concluded usually defer evidence that the verdict excessive. We of the whole having superior judge as opinion extent of the trial to some *12 weight of judging credibility the witnesses and the means came judge case first time but the who tried this evidence, con- judge which reach. The first trial to the same conclusion we damages cluded that limit of allowable. Because $7,500 $8,000 as lapse time, will be increased to that amount if plaintiff limits. Our will within reasonable conclusion judg- days, a enter a remittitur in this within ten $4,000 $8,000 as of date of the ment will be entered here for judgment; otherwise, remanded. the case be reversed and will Ferguson so ordered. Hyde, ‘CG., concur. adopted foregoing opinion PER C., CURIAM: —The Sturgis, judges except opinion concur, Coles, J.,
as the All court. sitting. City Sikeston, Appellant, of Missouri Relation of State v. Public 105. Service Commission. 82 S. W. April 17, One,
Division