168 Mo. App. 177 | Mo. Ct. App. | 1912
TMs is a personal injury suit. Plaintiff had been employed thirty-five years as a laborer in a mill operated by defendant at Jefferson City and was injured when engaged in oiling machin
The answer contains a general denial and pleas •of assumed risk and contributory negligence. A trial •of the issues resulted in a verdict and judgment for -plaintiff in the sum of six thousand dollars and the •cause is before us on the appeal of defendant.
The errors assigned by counsel for defendant re-Tate to the rulings of the court in giving instructions -.numbered 1, 2 and 6, asked by plaintiff and to the al'leged misconduct of counsel for plaintiff in the exami-nation of witnesses and in the closing argument to •The jury.
The sixth instruction given at the request of plaintiff related to the measure of damages and directed the jury to allow him damages for “his necessary expenses for medical attention in endeavoring to be cured” without placing any limit on such allowance or confining it to expenses incurred for medical attention received before the filing-of the suit. The petition expressly restricted such damages to $175 in amount and to medical attention received before the institution of the suit. Plaintiff is permanently injured and his evidence tends to support the inference that his expenses for medical services which he has incurred, and with reasonable certainty will incur in the future, on account of his injury are an indefinite amount greatly in excess of that stated in the petition.
Defendant complains of misconduct on the part of counsel for plaintiff in persisting in asking leading questions of his witnesses but we find the court sustained the proper objections of defendant to such questions and, as the record shows defendant was content with .these rulings at the time they were made, no issue of misconduct on that ground is before us.
But we find the court failed to give proper heed to defendant’s objections to improper and highly inflammatory remarks made by counsel for plaintiff in the closing argument to the jury on the subject of the measure of damages. In the course of his argument to the jury counsel said, “How many of you, gentlemen of the jury, would have your arm torn from your body for ten thousand dollars?” And when defendant objected, counsel withdrew the remark. The court, at the request of defendant, told the jury the remark was withdrawn and admonished the speaker to keep within the record. Immediately he repeated the same thought in a slightly different manner and on being again warned by the court to keep within the record, exclaimed that he would do “anything on earth to please this man” referring to the objector, and then, as a climax, said the same thing over again in a more impressive way. This time the court overruled defendant’s objection and said the remark was not improper. Defendant excepted to the ruling and has preserved his exception in the record.