155 Mo. App. 202 | Mo. Ct. App. | 1911
This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes' the appeal.
It appears plaintiff, a lady about sixty years of age, was a passenger on defendant’s street car operated by it on Olive street in the city of St. Louis. She was seated in the forward portion of the car. Upon approaching Theresa avenue, which was her destination, she gave the signal for the car to stop to permit her to alight. In pursuance of the signal, the car came to a stop at the usual place for discharging and receiving passengers and because of its crowded condition, plaintiff passed out of the front door to alight from the platform there provided for such purpose. The evidence tends to prove that she proceeded with reasonable diligence and exercised ordinary care for her own safety, but while she was in the very act of alighting, the power
Among other things, the court instructed the jury for plaintiff that if she was a passenger on the car and it stopped at Theresa avenue for the purpose of permitting her to alight therefrom and that she^proceeded to alight from the car with reasonable expedition and the servants and agents of defendant, whose duty it was to control the motion of the car, while she was in the act of so doing and before she had fully alighted therefrom, without giving her warning to that effect, caused the car to start forward with a sudden jerk and thereby directly and proximately caused her injury, then the finding should be for plaintiff, provided she was exercising ordinary care at the time. It is argued the instruction is erroneous in that it omits to require the jury to find further that the car was not stopped a reasonable length of time to permit plaintiff to alight. The argument is without merit on the facts of the case, for though it is true the duty rests upon defendant to stop its car a reasonable length of time for passengers to alight and the passengers are presumed to act with due diligence in that regard, the doctrine is without influence here for it appears the car- stopped upon the plaintiff’s signal for the purpose of permitting her to alight. - In such circumstances, the high degree of care which the law devolves upon the carrier of passengers is not fulfilled unless its servants, before staring the car, see and know that the passenger in the act of alighting has succeeded in doing so in safety and that he or she is not in such a situation as to be imperiled by the sudden starting of the car. [Thompson’s Com. on Neg., sec. 3520; Nelson v. Met.
Two physicians, Dr. Simon and Dr. Konzelmann, who had made personal examinations with respect to plaintiff’s injuries, qualified as expert witnesses at the trial. After describing plaintiff’s condition, etc., each of these professional gentlemen was permitted to express an expert opinion, based solely upon the objective symptoms which he discovered from an examination of plaintiff’s injuries, to the effect that she would suffer pain therefrom in the future. From examination made and the objective symptoms discovered, these witnesses said they were able to state whether or not she would suffer pain therefrom in the future. ‘After so stating, the court permitted them to express the opinion, over defendant’s objection and exception, that plaintiff would suffer future pain from the injuries said to have been received through defendant’s negligence. It is earnestly argued the court erred in so doing, for the reason the expert opinion so given was but the conclusion of the witnesses and invaded the province of the jury. No one can doubt that a physician duly qualified as an ex
It appears, among other injuries, plaintiff received a severe sprain of the ankle and her foot was much swollen thereafter. Dr. Konzelmann, though he qualified as an expert as well, was her attending physician, having been called immediately after plaintiff was injured. This Avrfcness gave testimony with respect to the swollen condition of plaintiff’s foot and was permitted to testify, over defendant’s objection and exception, that the swollen condition of the foot was traumatic; that is to say, that it resulted from violence. The purpose of this opinion evidence was to exclude the idea that such swelling was edematous, for the theory of defendant as to the swelling is, that plaintiff was dropsical, and there is-evidence tending to support it. In other words, there is evidence in the record tending to support the theory that a considerable part of the apparent swelling resulted from a dropsical or edematous condition independent of the injury. In view of this, it is argued the court erred in permitting Dr. Konzelmann to state his opinion to the effect that plaintiff’s SAVollen foot was traumatic and- resulted from violence, for it is said such was the very issue before the jury and his evidence.
“An edema, as we speak of edema, is a condition where a watery fluid deposits itself beneath the skin, causing it to become big and puffy also; it is a swelling, of course, but it is quite different from a swelling that is traumatic, like from a blow. If you put your finger on it and press, it would leave a pit and it is quite easy for the physician to distinguish the edema. The swelling has very different symptoms from that caused by a blow or injuries where the swelling is the direct result of the blow, with the blood congestions and deposits.”
Dr. Konzelmann, who was plaintiff’s attending physician, stated that he was able to determine by looking at the swelling whether it was traumatic or edematous in character. After so stating, plaintiff’s counsel propounded the following question to the witness:
“Q. I will ask you to state whether or not the swelling you noticed was caused by trauma, that is to say, violence?”
Over the objection and exception of defendant, the court permitted the witness to answer that the injury was traumatic. It is argued this was error, because it permitted the physician to answer the very question in issue before the jury. Upon mature consideration of the matter, we are persuaded the argument is unsound for the reason the.' doctor’s statement did not purport to say that the swollen condition resulted from the street car injury but only went to the nature of the injury as. descriptive thereof in a general sense. The case of Glasgow v. Met. St. R. Co., 191 Mo. 347, 358 et seq., 89 S. W. 915, relied upon by defendant, is not precisely in point, and we believe the rule of that case should not be extended. In the case referred to, the injury
But the question and answer under consideration here are of a different class entirely, for instead of going to the effect that the swollen condition of plaintiff’s foot appeared to be the result of a fall from a street car,
The judgment should be affirmed. It is so ordered.