Grady v. St. Louis Transit Co.

102 Mo. App. 212 | Mo. Ct. App. | 1903

REYBURN, J.

(after stating the facts as above).— 1. Three assignments of error are presented, the first being that the court erred in the extent of the examination of the attending physician, permitting him to state specified paralyzing effects upon organs of plaintiff, consequent upon the injury to his spine, without foundation being laid therefor in the petition. The common rule is that evidence may be introduced of any special damage, the immediate result of the act complained of, but not of any remote consequences. Muth v. Railway, 87 Mo. App. l. c. 437. The complaint, among other specific injuries narrated, charged permanent injury to the spine, and the chief medical attendant of plaintiff testified that the condition of the organs sought to be shown, was the probable result of the concussion of the plaintiff’s spine, to which he had already testified. But were such line of inquiry inadmissible under the allegation of the petition, it was not excepted to and such error would be non-prejudicial as the effects involved were not carried into the instructions as an element of recovery. Muth v. Railway, supra.

2. An additional criticism of the instruction defining the measure of recovery as permitting the consideration of plaintiff’s loss of earnings as an element of his damage, for the reason that there was no evidence upon which this portion of the instruction could be predicated, is devoid of merit. Plaintiff’s testimony evidenced his earning capacity per diem prior to the casualty, and-that thereafter he had been compelled to employ assistance in the conduct of his business at the rate of compensation specified, from which premises the jury could with facility compute the extent to which his earning power had been lessened, and impaired, as one of the results of the injuries sustained by him, and which .testimony fully warranted the submission of such issue to the jury.

3. The same instruction is censured for failure to limit plaintiff’s recovery to the reasonable amount incurred for medical services. The testimony of plaintiff’s attending physician expressly stated that the amount named as Ms charge was reasonable, and this was not controverted by defendant, although a physician in its employ subsequently appeared as á witness in its behalf. The instruction might with exactness have called for the recovery of the reasonable value of the medical aid rendered plaintiff, but we do not consider that the- language adopted materially affected the merits of the action or the substantial rights of defendant. R. S. 1899, secs. 659, 865; Gorham v. Railway, 113 Mo. l. c. 421.

Appellant has vigorously urged that the important question in this case was the extent of plaintiff’s injuries, but this was for the jury, and, while the testimony is conflicting, the verdict finds abundant support and is affirmed.

Bland, P. J., and Goode, J., concur.