144 Mo. 519 | Mo. | 1898
This is an action to recover damages on account of personal injuries received by plaintiff through falling into a hole in the platform of defendant at its station at New Madrid, Missouri. The ground of the action is negligence in not maintaining the platform in a reasonably safe condition, by reason of which, on leaving a train at said station, upon which he was a passenger, plaintiff fell into a hole and was injured. The answer was in substance a general denial and a plea of contributory negligence. The evidence tended to prove the negligence charged and the injuries sustained thereby. The trial resulted in a verdict and judgment for' plaintiff for $13,500, from which defendants appealed. •
This is the second appeal. The result of the first will be found reported in volume 121 of the Missouri Reports, at page 7. A number of questions disposed of on the first appeal have been reargued, but on these
I. After the case had been remanded, in pursuance of a suggestion of this court, defendant applied to the circuit court for the appointment of a commission of competent and disinterested physicians to make a physical examination of plaintiff with a view of ascertaining the character and extent of his injuries. In compliance with the application the court appointed Drs. Harris, Tomlinson and Fraser to make the examination. Dr. Harris declining to act, an examination was made by the other two. In the trial the .parties examined as expert witnesses, physicians called by themselves respectively, but neither party called as witnesses those who had made an examination of plaintiff under the order of the court, until after defendant had closed his defense. At this stage of the proceedings plaintiff was allowed, over defendant’s exception to introduce and examine these witnesses. In granting the leave the court remarked in the presence of the jury: “The Supreme Court has indicated in this case that it would like to have this court appoint a commission; I have done so in response to that, and I will permit the commission to testify.” Defendants now insist that the court committed prejudicial error in permitting plaintiffs to examine these witnesses out of their regular order, and that the remarks of the court made in the presence of the jury were improper and prejudicial. There was no reversible error in permitting plaintiff to examine these witnesses out of their regular order. The circuit courts have a very broad discretion in regard to the order of admitting testimony, and their discretion will not be interfered with unless it clearly appears to have been abused. There was no abuse of discretion in this instance. These witnesses had made a physical
The experts who made the examination became the witnesses of the court, rather than of the parties to the action; and if the parties refused to call them the court had the right to do so, in which case greater credit would have been given them, than was given by the remarks complained of.
II. It appears that Dr. Fraser, a member of the commission, had, at the request of plaintiff, previously made an examination of his injuries. It is insisted that the doctor could not, in the circumstances, have been wholely unbiased and disinterested. We do not think
In paragraph five of the opinion in this case, on the former appeal, it is held that, under the undisputed evidence in the case there was no reversible error in the third instruction. The same instruction was given on the retrial. Defendants still insist that the instruction is erroneous in that it assumes as a matter of law that the hole in the platform was unsafe and dangerous, and in that it did not allow them a reasonable time in which to make repairs. They say that the opinion is in conflict with one condemned in the case of James v. Railroad (107 Mo. 485), in which it was held to have been a question for the jury to determine whether it was negligence on the part of a railway company to construct and maintain a station platform of planks having auger holes through them from one and a half to two inches in diameter. In this case defendant’s agent in charge of the station, and others of its employees, testified that the hole in the platform was
III. A number of physicians were examined as experts who gave to the jury their opinion as to the character, effect and permanency of plaintiff’s injuries. In respect to the weight to be given their evidence the court instructed the jury as follows: “With respect to expert testimony, or in other words the opinion of the doctors, you may take into consideration whether such opinions are supported or refuted by other testimony in the cause. You may also take into consideration the professional léarning, skill, ability and experience of such experts.” Counsel makes this instruction a basis for the argument of several propositions of law in respect to the admissibility of expert testimony and the necessary qualifications of a witness to testify as an expert.
The competency of the witnesses to testify as experts was a question for the court to decide; the weight to be given to their testimony was to be determined by the jury. If, after an examination defendant was of the opinion that a witness was not shown to be competent to testify as an expert, objection should have been made to his competency at the time, and all the evidence given in support of his qualification should have been preserved in order that the appellate court could pass upon the exception. The qualification
It is argued that in no case should expert or opinion testimony be received except it be based upon facts clearly proved. The. legal proposition here asserted applies only to hypothetical questions put to an expert witness based upon the evidence. Even in such case it is not essential that the facts be clearly established. A sufficient basis for the opinion of an expert is established when the evidence tends to prove all the facts upon which the opinion is hypothecated. Russ v. Railroad, 112 Mo. 48. It may be agreed that the evidence of experts would be entitled to much greater weight and the result of trials would be much more satisfactory if the witnesses were disinterested and unbiased, as well as learned and skillful, but the same may be said of any other witnesses; if they would all speak the unqualified and unbiased truth justice would seldom fail. But witnesses, whether they testify to facts, or give their opinions as experts, are not always unbiased or truthful and the jury must determine the weight to be given to their evidence.
Counsel say, and correctly, that expert testimony is admitted as a necessity and should always be received and considered with great caution. It is nowhere shown that the evidence introduced on this trial was not competent. The witnesses were all, so far as appears, respectable physicians and the subject was one which properly called for the testimony of experts. Such witnesses were called and examined by both parties, without objection, and, as heretofore said, there is no basis for the objection to their competency. If defendants thought the jury should have been cautioned in respect to the weight to be given to the testimony they should have asked an additional
IY. Defendant insists with much earnestness that the court committed error in the instructions given to the jury in respect to the measure of damages. It is said that the fourth instruction assumes that the plaintiff suffered physical pain and inconvenience and mental anguish from his injuries. The instruction requires the jury to find that plaintiff suffered physical injuries from falling into the hole in the platform. The allowance of any damages is made to depend upon those facts. The jury was further instructed that in estimating the damages “you may take into consideration and account.......his bodily and mental pain, if you believe from the evidence such is the fact.” It must be agreed that the rule thus given for the guidance of the jury is not entirely clear, but the jury must have understood from it that they could only allow damages for such pain, physical and mental, as plaintiff actually suffered. But if plaintiff was injured, as charged, which fact the jury was required to find, there would be no reversible error in the instruction though physical and mental pain, as a result, was assumed. Pain is the natural result of such injuries as the evidence tends to prove plaintiff suffered, and may fairly be assumed to follow as a necessary consequence.
Y. Defendants requested the court to instruct the jury that in order for plaintiff “to recover any damages in this cause for permanent injury or permanent mental suffering or physical pain he must show that he took proper and immediate steps to have his condition improved and did all that a prud.ent and careful person would have done to have his injuries cured and himself restored to good condition of health.” The court refused to give this instruction, and correctly. An
The court, on its own motion, instructed the jury on this question as follows: “If you believe from the evidence that his injuries have been aggravated and his pain and suffering enhanced by his own imprudence or want of ordinary care, then for such increase of pain, or for such aggravation of injury, he can not recover.” This instruction declares the correct principle of law as far as it goes. If defendants had wished to have the jury instructed in respect to the duty of plaintiff in the matter of caring for his injuries a proper instruction should have been requested. The duty of plaintiff can, however, be very easily inferred from, the instruction given.
VI. . We have considered the evidence, and the instructions on the question of damages very carefully in view of the large amount of the verdict, in order to see if anything appeared therefrom to indicate that the verdict was the result of passion or prejudice. The evidence shows that the injuries were not at first regarded as being serious, but that the condition of plaintiff has continued to grow worse until, according to the evidence of some of the physicians who examined him, and that of plaintiff himself, he suffers from incontinence of urine, injury of the spine, insomnia, impairment of memory, loss of sexual powers and hernia.
The judgment is therefore affirmed.