159 Mo. App. 370 | Mo. Ct. App. | 1911
This is an action for damages for injuries sustained by plaintiff as the alleged result of defendant’s negligence. On the 22d of June, 1910, plaintiff was a passenger on one of defendant’s freight trains. He was a stock shipper accompanying a shipment of stock from Cole Camp, in Benton county, to St. Louis. At a point on the route between Kirkwood and Valley Park, another freight train running in the same direction as that on which plaintiff was riding collided with the caboose in which plaintiff was being carried. The force of the collision was so great that the caboose in which plaintiff was riding was hurled on top of a flat ear immediately in front of it, from which it toppled over and rolled down an embankment twenty or thirty feet high.
Plaintiff’s evidence tends to show that he was taken out of the caboose in an unconscious condition and so remained for some time thereafter, and that
Plaintiff was put upon a relief train and taken to St. Louis and placed in defendant’s hospital where he remained for about sixteen days, during which time he was confined to his bed until on the fourteenth day, when he went out for the purpose of buying a suit of clothes. On the sixteenth day he went to his home in Cole Camp, but afterwards returned to St. Louis to be treated by Doctor Kieffer for the injury to his bowels. The evidence tends to show that since his injury plaintiff has not been able to sleep soundly; that he turns over in the bed with difficulty and suffering; that since the injury he has not been able to ride on 'a horse and that he cannot without suffering pain ride about in the prosecution of his business; that before his injury he was an active and strong man; and that such injuries in all probability will be permanent. There was evidence tending to show to the contrary that plaintiff was enabled to carry on his business as usual, and that his injuries were not of a permanent character, especially that to the bowels.
In the progess of the trial plaintiff propounded to his expert witness the following question: “Now, doctor, take a man fifty-seven years old, strong physically, and let him be riding on a caboose attached to a freight train, going along the road at a moderate speed, and another freight train, having an engine, hit the caboose and knock it up on flat cars, and turn it over and down an embankment thirty or forty feet, demolishing the car, with this man inside there with chains and such things as they usually carry in a caboose, and he is rendered unconscious, and cut in the head, and punctured in the stern with a nail and
Dr. Alexander, the hospital physician and surgeon who attended on plaintiff, was introduced by defendant and was asked if plaintiff made any complaint to him at any time while he was in the hospital, about having any trouble of any kind with his bowels. Plaintiff objected to the competency of the witness because of the confidential relation of doctor and patient. The 'objection was sustained. The finding and judgment were for the plaintiff and his damages assessed at five thousand dollars, from which defendant appealed.
We do not think there was any error in sustaining the objection to the testimony of Dr. Alexander-, as he sustained the confidential relation of doctor and patient. The ruling is justified by the holding in Smart v. Kansas City, 208 Mo. 162.
The objection to instruction No. 1 given for plaintiff, is that it is not supported by the evidence, but we think otherwise. As the case is to be reversed we do not deem it necessary to pass upon, the question as to the excessive verdict. Reversed and remanded.