O. P. KEYES v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant.
Division One
September 4, 1930
31 S. W. (2d) 50
The petition is grounded upon the general negligence of the defendant railroad carrier, that is, upon the doctrine res ipsa loquitur; and alleges that plaintiff was a passenger for hire upon defendant‘s south-bound passenger train, which train was caused and permitted to collide head-on with a northbound locomotive engine of defendant railroad carrier, “through the negligence of the defendants, and without fault on the part of the plaintiff, with great force and violence, thereby causing plaintiff to be thrown in and about the car on which plaintiff was a passenger and to cause plaintiff to suffer serious, painful and permanent injuries,” which injuries are thus described and specified in the petition:
“The vertebrae of plaintiff‘s spine in the upper portion thereof and the neck were fractured and dislocated and the ligaments, tendons and tissues connected therewith severely wrenched, torn and strained. Plaintiff received a severe blow in the face in the region of the nose and eye causing his face to be cut and bruised. Plaintiff suffered a concussion of the brain, both elbows were severely bruised and the bones, ligaments and tendons thereof bruised, torn and injured; the bones of plaintiff‘s left hand were fractured; that by reason of said injuries plaintiff has suffered from nervous shock, chronic inflammation of the bones and joints of the spine, dizziness, headaches, insomnia, restlessness, irritability, bladder trouble and lack of appetite. The optic nerves have become atrophied and the
vision of his eyes impaired and diminished, all of which injuries are permanent and from which plaintiff has suffered, does and must in the future suffer pain of body and anguish of mind; that he has been permanently incapacitated from working and earning a livelihood and has and must in the future lose the earnings of his labor as a laborer of $90 per month.”
The petition joined, as codefendants with the defendant railroad carrier, two individuals, T. A. Briscoe and J. P. Murphy, who are alleged to have been employees of the defendant carrier in charge of the colliding engines of defendant carrier.
The defendant railroad carrier filed a separate answer, denying generally each and every of the averments of the petition. The individual defendants, Briscoe and Murphy, filed a joint answer, denying generally each and every of the averments of the petition.
The cause was tried to a jury. The evidence is uncontroverted by defendants that plaintiff was a passenger for hire on defendant carrier‘s passenger train, and that a collision occurred on the morning of August 17, 1925, between the train in which plaintiff was riding and a locomotive engine of defendant carrier. It is indisputable under the evidence adduced that plaintiff sustained some injuries as the direct and proximate result of the collision, but there is a sharp conflict in the evidence as to whether plaintiff sustained the serious and permanent injuries he claims to have suffered as the direct and proximate result of the aforesaid collision.
At the close of all the evidence, the trial court peremptorily instructed the jury in writing that, under the pleadings and the evidence, plaintiff is not entitled to recover against the individual defendants, Briscoe and Murphy; whereupon, and before the submission of the cause to the jury, counsel for plaintiff announced, in open court, and with the approval of the trial court (as disclosed by the record before us), that plaintiff desired to take an involuntary nonsuit as against the individual defendants, Murphy and Briscoe, with leave to move to set the same aside. Judgment was entered by the trial court, under circumstances to be hereinafter recited, that “plaintiff have and recover of the defendant, Chicago, Burlington & Quincy Railroad Company, a corporation, the sum of ten thousand ($10,000) dollars, together with the costs of this suit, and have therefor execution.” After unavailing motions for a new trial and in arrest of judgment, the corporate railroad defendant was allowed an appeal to this court.
Appellant assigns error on the part of the trial court as follows:
“(1) The court erred in failing to enter judgment for the defendant on the verdict which nine jurors had affirmed on the poll; (2) the court erred in ordering the jurors to retire and bring in another verdict, after their verdict had been recorded, and they had
The several assignments of error will be discussed and ruled in the order as above stated.
I. The first three assignments of error may be grouped together, and considered and ruled as a single assignment. They relate to the reception by the trial court, and the filing and recording, of the verdict of the jury upon which the trial court entered judgment in favor of plaintiff, and against the appealing corporate defendant. The first three assignments of error are predicated upon the following circumstance and occurrence, as disclosed by the record proper, abstracted herein as follows:
“The cause was, at the October term, 1926, of said court, and on November 1, 1926, under the rules of court, duly assigned to Division No. 9 of said court, Hon. George E. Mix, Judge, presiding, and was tried November 1, 3 and 4, 1926, at said term.
“Wednesday, November 3rd, the jurors retired to consider of their verdict, and not having agreed upon a verdict at the hour of adjournment, it was ordered by the court that said jurors return into court a sealed verdict.
“And on Thursday, November 4, 1926, and at said October term, 1926, the following proceedings were had, as appears by the record of said court, as follows:
“Now at this day come again the parties hereto by their respective attorneys, comes again the jury, heretofore sworn and impaneled herein. Thereupon said jury returned into the court a sealed verdict, and being opened by the court, the jurors aforesaid, upon their oath as aforesaid, say:
“‘We, the jury in the above entitled cause, find in favor of the defendant, on the issues herein joined.
“‘EARL S. QUINN, Foreman.
“‘EARL S. QUINN, ROBERT A. SMITH, CHARLES HEADEN, CHARLES L. SPENCER, FRED A. SCHNEIDER, LOUIS BARRY, JOHN BREITENBACH, CHAS. W. BEESON, W. F. MCNORTON.’
“Upon being duly polled said nine jurors each answered that it was his verdict.
“Whereupon, said jurors were dismissed, but were required by the court to remain in the courtroom.
“‘We, the jury in the above cause, find in favor of the plaintiff, on the issues herein joined and assess plaintiff‘s damages at the sum of ten thousand dollars.
“‘EARL S. QUINN, Foreman.
“‘EARL S. QUINN, LOUIS BARRY, FRED A. SCHNEIDER, W. F. MCNORTON, CHARLES HEADEN, CHAS. W. BEESON, JOHN BREITENBACH, ROBERT A. SMITH, CHARLES L. SPENCER.’
“Thereupon, the court again called all of the jurors to the bar and refused to receive either of said verdicts for the reason they were contradictory, and instructed all of said jurors to again retire to their room and return a verdict. Whereupon, all of said jurors retired to their room, and again coming into court returned a verdict, and upon being read as aforesaid, upon their oaths as aforesaid, say:
“‘We, the jury in the above cause, find in favor of the plaintiff, on the issues herein joined and assess plaintiff‘s damages at the sum of ten thousand dollars.
“‘EARL S. QUINN, Foreman.
“‘EARL S. QUINN, LOUIS BARRY, FRED A. SCHNEIDER, W. F. MCNORTON, CHARLES HEADEN, CHAS. W. BEESON, JOHN BREITENBACH, ROBERT A. SMITH, CHARLES L. SPENCER.’
“And upon being polled said nine jurors each answered that said verdict was his verdict, and which said last named verdict was received by the court and duly filed.
“Wherefore, it is considered and adjudged by the court that plaintiff‘s cause of action be and the same is hereby dismissed as to defendants T. A. Briscoe and J. P. Murphy, that said defendants be discharged and go hence without day.
“It is further considered and adjudged by the court that plaintiff have and recover of the defendant, Chicago, Burlington & Quincy Railroad Company, a corporation, the sum of ten thousand ($10,000) dollars, together with the costs of this suit, and have therefor execution.
“Verdict and instructions filed.”
The bill of exceptions, as abstracted, contains an almost identical recital of the aforestated circumstance and occurrence, but shows the taking and saving of an exception on the part of the corporate defendant to the order and ruling of the trial court in refusing to receive either of the two contradictory forms of verdict, and in recalling the jury and instructing them “to again retire to their room and return a verdict.”
The question thus presented for our consideration and determination is somewhat unique, especially in view of the fact that there is nothing to be found in the record before us which explains, or throws light upon, the reason for the action of nine of the jurors in signing two conflicting, contradictory, and incompatible, forms of verdict.
We are not impressed with the force of appellant‘s argument and contention that the signed form of verdict in favor of defendant, upon which form of verdict the jury were polled, constituted (in fact or in law) a recorded verdict, upon which recorded verdict the trial court was bound, under the established principles of law, to enter a judgment for the defendant. The circumstance and occurrence, as recited and spread by the trial court upon the record in the cause, must be viewed and considered by us in the light of the whole and entire record. The record specifically and positively recites that the trial court “refused to receive either of said verdicts for the reason they were contradictory.” Thus, the record of the court, by the positive recital aforesaid, refutes the claim of appellant that the signed form of verdict in favor of defendant (notwithstanding that the jury were polled thereon) was actually received by the court as the verdict of the jury, or that such form of verdict was actually recorded as the verdict of the jury. The record expressly and positively declares that the trial court refused to receive the signed form of verdict in favor of defendant, as well as the signed form of verdict in favor of plaintiff, as originally returned by the jury enclosed and sealed
In Newton v. Railroad Co., 168 Mo. App. 199, 201, it was aptly said by TRIMBLE, J., speaking for the Kansas City Court of Appeals: “The judgment is not rendered until after the verdict has been received and recorded, and the verdict as written and recorded is the basis, and the only basis, of the judgment.”
In the more recent case of Lummi Bay Packing Co. v. Kryder (K. C. C. A.), 263 S. W. 543, 545, it was earnestly contended by the appellant therein (as in the instant cause) that a signed form of verdict, which the trial court had refused to receive as the verdict of the jury, should have been used by the court as a basis of correcting a later verdict, which was received by the trial court and duly recorded, and upon which later verdict a judgment was entered. Said the same Court of Appeals, again speaking through TRIMBLE, P. J., in answering such contention: “The contention seems to be made, or rather intimated, that it is conceded that the verdict when first returned contained a finding on the counterclaim and, therefore, the court could and should, under the circumstances, correct the [later] verdict. There are two answers to this [contention]. In the first place, the fallacy is in assuming that the first paper brought in was a verdict. In one sense it may have been, if we mean that it was, at that moment, the answer and finding of the jury; but it did not become a verdict on which a judgment could be rendered, for it was never received and recorded.” [Italics ours.]
In 27 Ruling Case Law 841, the applicable rule of law is thus stated: “The delivery and recording of a verdict are essential to its validity, because it is not perfected until recorded, and a trial cannot be considered as ended until this is done. The fact that the verdict has been announced, and has been, as announced, entered in the minutes of the clerk, is not that recording which makes the announcement and the clerical act the fixed and unalterable verdict of the jury. Until the final interpretation is made by the clerk and assent given, express or tacit, and the jury dismissed and become no more a jury in the case, the verdict within certain limits is within the power of the jury, and to a certain extent within the direction of the court.”
The signed form of verdict in favor of the defendant was neither received by the trial court in the instant cause, nor was such form of verdict “recorded,” within the meaning of that term as used in the law, so as to constitute a true verdict of the jury, upon which a judgment for defendant could have been entered. To hold otherwise would be to do violence to the clear and positive recitals of the
It is contended by appellant, however, that the record discloses by positive recital that, immediately after the poll of the jury upon the signed form of verdict in favor of defendant, the jury were formally and finally discharged by the trial court, notwithstanding that the record also recites that the jury were required by the court to remain in the courtroom; hence, it is urged that the jury were functi officio, and were without power or authority to modify, amend, alter, or correct the signed paper in the form of a verdict in favor of defendant upon which they were polled and which they affirmed as their verdict), or to return another verdict in the cause, and the trial court was equally without power or authority to recall and reassemble the discharged jury, and to direct them to retire to the jury room and return “a verdict” in the cause. Appellant‘s contention is mainly predicated upon the word “dismissed,” as used in the record, it being asserted that the words “dismissed” and “discharged” are synonymous, and since the record positively recites that the “jurors were dismissed,” therefore the record can only be construed and held to mean that the jurors were finally and formally discharged by the court from the performance of any further functions and duties in the cause, and their subsequent action was a nullity.
It may be conceded (as contended by appellant) that the established law is to the effect that, after the verdict of a jury in a cause is actually received by the trial court, and is actually recorded, and the jury are formally and finally discharged by the court, the jurors, as such, are functi officio in the cause, and are without power or authority to materially and substantially alter or amend their recorded verdict.
In 27 Ruling Case Law 895, it is said: “The power of a jury over their verdict, unlike that of the court, ceases on their discharge. With their assent to the verdict as recorded their functions with respect to the case cease and the trial is closed, and after the verdict is received and the jury discharged the control of the jury is at an end, and they cannot be recalled to alter or amend it.”
The same text, however, also states the established law to be (27 R. C. L. 890): “The law allows the jury all reasonable opportunity, before their verdict is put on record and they are discharged, to discover and declare the truth according to the judgment. Before they have been dismissed from their relation to the case as jurors in it, their power over their verdict remains, and their right to alter it so
The established rule is thus stated in 2 Thompson on Trials (2 Ed.) sec. 2633, page 1918: “If the jury bring in a verdict which is informal, it is within the power of the court, at any time before the verdict is recorded and the jury are discharged, to send them out and require them to put the verdict in proper form, and to advise them how to do it. It is equally clear that the court may reduce the verdict of the jury to proper form and cause it to be read to them, and that if they assent to it, it will be their verdict. Where the jury have signed and sealed their verdict and delivered it to the clerk after the adjournment of the court, and have then dispersed, they may, when called to the bar the next day, before their verdict is recorded, be sent back to correct it, if it is found to be informal.”
In Kreibohm v. Yancey, 154 Mo. 67, 82, a replevin action, the jury returned into court a signed form of verdict, which the clerk of the court read to the jury, and then asked the jurors whether such was their verdict, and the jurors answered in the affirmative. The trial judge then directed the sheriff to adjourn the court to the following day, and while the sheriff was in the act of making the announcement of adjournment, and just before the announcement was completed, the foreman of the jury arose and spoke to the court, whereupon the court signaled the sheriff, and the sheriff stopped his announcement, and the jury being still in their seats, the court inquired of the foreman what he desired to say. The foreman then said there was another verdict also returned by the jury, and the court thereupon directed the clerk to hand the other verdict to the court, who inquired of the jurors respecting the two signed forms of verdict, in order to ascertain their true verdict. Whereupon the court directed the foreman to correct the signed form of verdict first returned by the jury, so as to make it include the entire finding of the jury, which was done by the foreman in the court-room and in the presence of the court and the jury. The verdict, as so corrected, was read to the jury by the clerk, who inquired of the jurors whether such was their verdict, and the jurors answered in the affirmative. Whereupon the court directed the clerk to enter the verdict, as corrected, and the court entered judgment thereon. The ap-
A situation almost identical with that presented in the instant cause was presented for decision to the St. Louis Court of Appeals, in Hary v. Speer, 120 Mo. App. 556, wherein the record disclosed the following: The jury, during the noon recess of the trial court, returned a sealed verdict, which the court opened on convening the afternoon session, and the first paper that caught the eye of the court was a form of verdict in favor of the defendant, signed by the foreman of the jury. Assuming that such signed paper was the verdict of the jury, the court looked no further in the envelope from which the signed paper had been removed, and directed the clerk to read the signed paper to the jury, who asked the jurors if such was their verdict. The court, however, did not observe what occurred when the clerk inquired of the jurors whether the signed paper so read to them was their verdict. After the clerk had read the signed paper to the jury, the court directed the jury to take seats in the body of the court-room. About five minutes thereafter, and while the jury remained seated in the body of the court-room, the clerk called the court‘s attention to the fact that there was another paper, or form of verdict, sealed and enclosed in the envelope, signed by the foreman of the jury, finding in favor of the plaintiff in the sum of $1220, and the clerk informed the court that, when the clerk, after reading to the jury the first signed paper, had asked them if such was their verdict, the jury seemed surprised, and one of the jurors slightly nodded his head, whereupon the clerk assumed that the signed paper so read to the jury was the verdict of the jury. Thereupon the court directed the sheriff to recall the jurors to the box, and on being interrogated by the court which of the two signed
In the very recent case of Glaves v. Old Gem Catering Co., 18 S. W. (2d) 564, 567, which was an action to recover damages for personal injuries, the record disclosed that the jury handed to the clerk of the trial court two separate papers, or forms of verdict, both signed by the foreman of the jury, one paper finding in favor of plaintiff and assessing her damages at the sum of $7,500, and the other paper finding for defendant. Thereupon the trial court informed the jury that they had not arrived at a proper verdict, and asked the jury which of the two signed forms of verdict was the one they intended to return. The foreman and several of the jurors answered that the verdict in favor of plaintiff was the verdict of the jury. The trial court then called the foreman to the bench and directed him to erase, and he did erase, his name from the form of verdict in favor of defendant, which was done in open court, in the presence of all of the jury, the counsel for the respective parties to the action, and the officials of the court. The verdict for plaintiff was then received by the court, filed, entered, and recorded as the verdict of the jury, and judgment was entered thereon. Defendant assigned error in the reception and recording of the verdict, and the entering of a judgment thereon. Said the St. Louis Court of Appeals, in denying the assignment of error: “We think it was clearly the duty of the court, when the jury attempted to return a patently ambiguous and defective verdict, to call their attention to the error, so that the same could be corrected, or, more appropriately stated,
In Victor Sewing Machine Co. v. Heller, 44 Wis. 265, 274, the jury returned into court a verdict, and the court, after receiving the verdict, handing it to the clerk, and having it read by the clerk to the jury, asked the jurors if it was their verdict, and receiving an affirmative reply, the court “informed the jury that they were discharged from further consideration of the case.” A few minutes afterwards, and while the jury were yet in their seats, and before they had separated, the court called their attention to certain imperfections in the verdict, inquiry was made of the jurors respecting their intention, the verdict was redrafted in conformance with the intention of the jury, and, as redrafted, was signed by the foreman and was declared by all of the jurors to be their verdict, whereupon the amended or redrafted verdict was received by the trial court and recorded, and judgment was entered thereon. Appellant assigned error in the reception of the amended verdict, and in the entry of judgment thereon by the trial court, all occurring after the court had “informed the jury that they were discharged from further consideration of the case.” Said the Supreme Court of Wisconsin, in ruling the assignment: “We do not think there was any error committed by the court with respect to the verdict. It is true, the record shows that the judge, after the delivery of the verdict, said to the jurors that they were discharged; but immediately thereafter, before they had left their seats or communicated with anyone, the judge called their attention to the imperfections in the verdict, and, having put the same in the form in which the jurors affirmed they intended it to be, it was signed by the foreman, and, as so amended, declared by the jury to be their verdict. The judges of the circuit courts are frequently called upon to perform a work of this kind. Jurors, unacquainted with the forms of law, very often deliver very informal verdicts; and, where their intentions are clearly indicated by such informal verdict, it becomes the duty of the
court to put it in proper form before it is entered as the verdict of the jury. It is in furtherance of justice that the judge should do so.”
In Junion v. Motor Co., 186 Wis. 298, 301, an action for recovery of damages for personal injuries, the jury returned a general verdict for plaintiff, assessing the amount of his damages, and the jury also returned, conformable to the Wisconsin practice, a special verdict, answering certain interrogatories, propounded to the jury by the court, respecting the issues submitted. The special verdict conflicted, in a material respect, with the general verdict of the jury. After the return by the jury of the general and special verdicts, a colloquy took place between the foreman of the jury and the trial judge respecting the answer made by the jury, in their special verdict, to one of the interrogatories propounded to them. When the colloquy occurred, some of the jurors had left the jury box, but none of them had left the court-room. The trial judge directed the jurors to be recalled and reassembled, and sent them to the jury room for the purpose of permitting them to correct the answer to the interrogatory as made in the special verdict. Error was assigned in such action of the trial court. Said the Supreme Court of Wisconsin, in ruling the assignment on appeal: “The defendant claims that the court erred in calling the jury together for the purpose of making the correction: It insists that the jury was discharged and that there was no power in the court to call them together again for the purpose of amending their verdict to conform with the facts as declared by the foreman that the unanimous agreement was that the answer to the fifth question [or interrogatory] should be ‘No.’ This is not a case where the jury seeks to impeach the verdict rendered, but a case where, before they finally leave the court-room, they informed the judge that an error had occurred in reducing their agreement to writing. It is well settled law both in our own jurisdiction and in other jurisdictions that there is an inherent power in the court to permit such errors to be corrected. . . . In this case, the jury was sent out to the jury room for the purpose of making the correction called to the attention of the court by the foreman. It is evident that it must have been the unanimous view of the jury that question number 5 should have been answered in the negative, otherwise they would not have agreed upon a verdict and returned to the court within three minutes. Whether the correction is made in the jury box or in the jury room is quite immaterial when it appears that there has been a mistake in reducing the agreement of the jury to writing and a correct verdict is returned. Such correction of the mistake may be made in the court-room in the presence of the court, or the court may in its discretion send the jury to the
In Levine v. Street Railway Co., 177 Mass. 204, an action in tort for personal injuries, the foreman of the jury, by mistake, signed a form of verdict in favor of the plaintiff, without any statement therein of the amount of damages awarded. On inquiry of the trial judge, it was ascertained that the jury, before separating, had found for the defendant, and that the foreman had signed the wrong paper, purporting to express the jury‘s verdict. The jury were then told by the court that, if they wished, they might retire and correct any mistake. They did so, and brought in a verdict for the defendant. It was ruled by the Supreme Judicial Court of Massachusetts, upon a certification of the question by the trial court to the latter court for determination, that the proceedings were within the authority of the trial court, and that judgment should be entered upon the verdict for the defendant. In ruling the question, the appellate court said: “There can be no doubt of the power of the judge in the court below to send out the jury to find a proper verdict, as the verdict which they had sealed up before separating was a defective one. [Citing numerous cases.]”
In Charles, Admr., v. Railway Co., 230 Mass. 536, 544, an action in tort for recovery of damages for the death of plaintiff‘s intestate, the cause was submitted to a jury upon eight special questions, or interrogatories, it being agreed by the parties to the action that the answers of the jury to the special interrogatories should be regarded as a sealed verdict of the jury. The jury returned the sealed verdict into court on Thursday, but had failed to agree upon an answer to one of the eight interrogatories. The jury separated on Thursday, but reassembled on the next court day, which was the following Monday, at which time the trial court ordered the jury to return to their room and consider the unanswered special interrogatory further, which the jury did, agreeing upon an answer thereto, upon which, as a basis, the court ordered a recovery for the plaintiff, in accordance with the special verdict of the jury. The propriety of the action of the trial court came before the Supreme Judicial Court of Massachusetts, upon exceptions duly taken to the action of the trial court, and the appellate court, in overruling the exceptions taken, said: “While the interval between the separation and the reassembling of the jury was longer than has been intimated in some cases was permissible, Winslow v. Draper, 8 Pick. 170, there appears to be no reason to think that justice has not been done or that the defendant has suffered any prejudice. . . . The conduct of the judge before directing the jury to consider the question further imports a finding that nothing had occurred during the interval of separation to imperil in the slightest degree the purity and ab
In Pritchard v. Hennessey, 1 Gray (67 Mass.) 294, 296, the jury returned a sealed verdict, which the trial court refused to receive, and sent the jury out again to put their verdict into proper form. Afterwards the jury returned a second verdict, which also was unsatisfactory to the trial court, as not embracing all of the issues submitted, and the jury were sent out a third time, over plaintiff‘s objections, and afterwards returned a third verdict. The last verdict was received and accepted by the trial court, and the last verdict was the only verdict recorded, judgment being entered thereon. Exceptions were taken by plaintiff to the action of the trial court, which exceptions were overruled by the appellate court, the court announcing the following conclusion: “The practice of sending out a jury, when they return a finding that is absurd or defective, has existed more than four hundred years. [Citing authority.] . . . It is objected by the plaintiff, that the jury could not be sent out in this case, because they had separated, after their first finding, before they came into court. But the cases cited by him do not support this objection; and the contrary appears from the cases of Edelen v. Thompson, 2 Har. & Gill, 31; Wolfran v. Eyster, 7 Watts, 38; and Sutliff v. Gilbert, 8 Ohio, 409.”
In Warner v. New York Central Railroad Co., 52 N.Y. 437, 440, it is said by the New York Court of Appeals: “There is no doubt but that a jury after giving in a verdict may, before it is recorded, be sent back to reconsider it; not only to correct a mistake in form, or to make that plain which was obscure, but to alter it in substance if they so determine and agree. [Citing cases.] And where a jury has been authorized to bring in a sealed verdict, and has found it, put it in writing, sealed it, has separated, has the next morning come together in court and given it in; if the verdict be defective, the court may direct them to retire again and reconsider it. [Citing cases.]”
In the light of the juristic decisions above cited, should we hold, upon the record before us in the instant cause, that the jury were formally and finally discharged by the trial court, within the meaning of the law, after having been polled on the signed form of verdict in favor of the defendant, and before the discovery by the court of another signed form of verdict, in favor of plaintiff, sealed in the same envelope from which the first form of verdict had been re
But the appellant urges that it is obvious from the record herein that the jury were “involved in error and confusion,” and were “wrapped in perplexity and misconception,” wherefore the defendant was deprived of an intelligent trial and determination of the issues by the jury, and, hence, that the trial court should have awarded defendant another and new trial of the issues. It is argued that the action of the trial court may have been viewed and construed by the jury as a suggestion or intimation of the court that the jury should return a verdict for plaintiff, rather than for the defendant. As we have said herein, we find in the record before us not the slightest intimation or suggestion by the trial court respecting which form of verdict the jury should return as expressing their true finding and verdict. The jury were merely advised, in substance and effect, that the court could not receive both forms of verdict, for the reason that they were contradictory and incompatible, and that the jury should reduce their finding to writing so as to clearly and certainly express
Lastly, it is urged by appellant that the trial court erred in receiving the verdict, and in entering a judgment thereon, because the verdict, as received by the court and as recorded, did not dispose of all the parties to the cause, and therefore was fatally defective because not responding to all of the issues submitted by the written instructions of the court. On the commencement of the trial, there were three defendants to the cause, the corporate appellant, Railroad Company, and the two individuals, Briscoe and Murphy. The record discloses, however, that, at the close of the whole case, the court gave and read to the jury two written instructions, in the nature of demurrers to the evidence, which peremptorily told the jury that, under the pleadings and the evidence, the plaintiff was not entitled to recover against the individual defendants, Briscoe and Murphy. Thereupon, and before the submission of the cause to the jury, counsel for plaintiff announced in open court that, because of the direction of a verdict in favor of the individual defendants, Briscoe and Murphy, the plaintiff “desires to take involuntary nonsuits against the defendants, Murphy and Briscoe, with leave to move to set the same aside;” to which the court affirmatively responded, “All right; yes.” Under the code procedure, applicable in our jurisdiction and in most other state jurisdictions, the taking by a plaintiff of an involuntary nonsuit as to one or more of several codefendants is equivalent to a dismissal of plaintiff‘s action as to the defendants against whom the involuntary nonsuit is taken (18 C. J. 1145, 1147); and, as a general rule, in tort actions, plaintiff may dismiss or discontinue as to a part of the defendants without discharging the rest, except where the action is for a tortious conspiracy entered into by all of the defend
For the reasons above stated, we conclude that no error was committed by the trial court in the reception of the verdict, or in entering judgment for plaintiff thereon, and that the several assignments of error touching such action of the trial court must be denied.
II. Error is assigned in the action of the trial court in permitting Dr. Henry, a medical witness on behalf of plaintiff, to testify, over defendant‘s objection, respecting an injury to plaintiff‘s shoulders, when no such injury was pleaded in the petition as a basis for recovery of damages. Dr. Henry was permitted, over the aforesaid objection of defendant, to testify respecting the result of his examination of plaintiff, made on the day before the trial, as follows: “I found a very limited—quite limited—function of his (plaintiff‘s) shoulder joints; on attempting to raise his left arm, I found he could not raise his arm any higher than this (indicating), without giving away to complaint of pain, and there was a wrench on bringing his arm over in this manner (indicating); he could not bring his hand to the top of his head, neither his right nor left hand. Now that condition could be produced by a shortening of the ligaments of the shoulder joints, or it may be due as the result of injury to the nerves which supply the muscles of his arms and shoulders—for instance, the nerves which come down from the back of the cervical region, that go to make up all of the nerves which supply the muscles of the arm, forearm and shoulder muscles—the injury to the nerves which supply these muscles; and the functions of the muscles would be
Among the various injuries specifically described and alleged in the petition to have been suffered by plaintiff were the following: “The vertebrae of plaintiff‘s spine in the upper portion thereof and the neck were fractured and dislocated, and the ligaments, tendons and tissues connected therewith (were) severely wrenched, torn and strained.” We think that the injuries which Dr. Henry testified he found upon his examination of plaintiff fall within the specific injuries described and alleged in the petition. Moreover, the record shows that testimony of the same tenor was admitted upon the trial without any objection from defendant. Plaintiff had previously testified, without objection by defendant: “I feel pain in the back of my head, my back and shoulders; right down between my shoulders; that affects the motion of my arms, makes me stiff; I cannot move my arms; they hurt when I move them.” Dr. Bennett, a medical witness proffered by defendant, when asked by defendant‘s counsel to relate what he found upon examination of plaintiff, testified: “I found some—he (plaintiff) complained of pains in the neck and shoulders, and I examined the neck and back and shoulders very closely, and found possibly some little thickening or stiffness like; he did not move exactly freely.” It has been repeatedly and uniformly ruled by this court that a party to an action will not be heard to complain of the admission of testimony over his objection, where testimony of the same tenor has been admitted without his objection. [Laughlin v. Railway Co., 275 Mo. 459, 474; Gaty v. United Railways Co. (Mo. Sup.), 251 S. W. 61, 64; Gilchrist v. Kansas City Railways Co. (Mo. Sup.), 254 S. W. 161, 164.] The assignment of error must be denied.
III. Plaintiff chose to submit his case upon two instructions, both of which were given by the trial court and read to the jury. One of said instructions was on the measure of damages, the propriety of which will be considered and ruled in a subsequent paragraph of this opinion. The other of said instructions, numbered one, is as follows:
“The court instructs the jury that if you believe and find from the evidence that the plaintiff was a passenger upon a train of the defendant at the time he claims to have been injured, then having received plaintiff upon board of such train, the due obligation of the defendant to plaintiff was to use the highest degree of care practicable among prudent, skillful and experienced men in that same kind of business, to carry him safely, and a failure of the defendant (if you believe there was a failure) to
use such highest degree of care would constitute negligence on its part; and defendant would be responsible for all injuries directly resulting to plaintiff, if any, from such negligence, if any. And if you believe and find from the evidence that there was a collision between two trains of defendant on one of which plaintiff was a passenger (if you believe he was a passenger thereon), the presumption is that it was occasioned by some negligence of the defendant, and the burden of proof is cast upon the defendant to rebut this presumption of negligence and establish the fact that there was no negligence on its part, and that the injury, if any, was occasioned by inevitable accident, or by some cause which such highest degree of care could not have avoided.”
Appellant claims that such instruction is erroneous for the reason that it merely declares an abstract principle of law, and fails to apply the abstract principle of law, so declared therein, to the facts in evidence, or to require the jury to find any fact thereunder in arriving at a verdict; that the instruction is deficient in that it does not expressly require the jury to find a causal connection between the collision and plaintiff‘s injury, and erroneously imposes or shifts the burden of proof upon the defendant without first requiring the jury to find that plaintiff was injured in the collision; and that the instruction wholly ignores the one and only issue contested by the defendant carrier on the trial, viz., whether plaintiff received any injury as the direct and proximate result of the collision, and, in effect, assumes as an uncontroverted fact that plaintiff was so injured in the collision.
The criticised instruction is practically identical, in form and language, with an instruction of like tenor discussed and approved by this court in each of the several cases, infra, wherein the relation of passenger and carrier was established by the evidence, and the carrier‘s actionable liability was predicated solely upon the application of the doctrine res ipsa loquitur, under a charge or allegation of general negligence upon the part of the defendant carrier. [Price v. Street Railway Co., 220 Mo. 435, 444, 457 et seq.; Powell v. Railroad Co., 255 Mo. 420, 453, 458; Trowbridge v. Fleming (Mo. Sup.), 269 S. W. 610, 614, 615; Fowlkes v. Fleming, 322 Mo. 718, 725, 729, 17 S. W. (2d) 511, 512, 514.] In truth, it seems to be conceded, in the brief and argument of appellant, that the criticised instruction in the main rightly declares the applicable rule of law in a passenger and carrier case, wherein the defendant carrier‘s actionable liability is predicated upon a charge or allegation of general negligence on the part of the defendant carrier. But appellant argues, in seeking to distinguish the instant case from the cited cases, supra, that there was no dispute in the cited cases that plaintiff‘s injury was directly and proximately occasioned by some unusual circumstance occurring while plaintiff was a passenger for hire upon de
Viewing the instruction as a whole, we are of the opinion that it is not a mere abstract declaration of law, for at least the instruction does require a finding by the jury of the essential facts that plaintiff was a passenger upon defendant carrier‘s train at the time he claims to have been injured, and that there was a collision between two of defendant‘s trains, on one of which plaintiff was a passenger at the time. Neither do we view the instruction as tending to mislead or confuse the jury, nor as assuming the fact that plaintiff was injured as the direct and proximate result of the collision. In precise and unambiguous terms, the instruction declares the applicable law to be that “defendant would be responsible (that is to say, actionably liable) for all injuries directly resulting to plaintiff, if any, from such negligence, if any.” The instruction does not undertake to direct a verdict, and is not peremptory in form or language. It seems to be conceded by appellant that the instruction, so far as it goes, properly declares the applicable law in a passenger and carrier case, wherein the carrier‘s actionable liability is predicated upon a charge of general negligence, under the doctrine of res ipsa loquitur, except that appellant insists that the instruction should have gone farther and expressly required a finding by the jury of the fact that plaintiff was injured in the collision, which fact, appellant insists, is an essential and necessary element
IV. Appellant assigns error in the giving of plaintiff‘s Instruction No. 2, on the measure of damages, which reads: “If the jury find for the plaintiff under all the evidence in the case and all the other instructions given by the court, in estimating and determining the amount of his damages, they may take into consideration in connection with all the facts and circumstances in evidence, the character and extent of his injuries, if any, occasioned by the collision of the trains in question and directly caused thereby, plaintiff‘s physical pain and mental anguish, if any, resulting from said injuries, if any, and whether such injuries or any of them are permanent in their nature and may find for him such sum as in the judgment of the jury under all the evidence in the case will fairly and reasonably compensate him for the injuries, if any, so received.” [Italics ours.]
The claim of error assigned by appellant is grounded upon the inclusion in the instruction of the two italicized clauses. It is urged by appellant that a similar instruction was condemned by this court in May v. Railroad Co., 284 Mo. 508, 530. The reason for our ruling in the May case was discussed by us in the recent case of Sallee v. Railway Co., 321 Mo. 798, 12 S. W. (2d) 476, 479, and the holding in the May case was held to be inapplicable in a case where there are no facts or circumstances in evidence which can be said to excite the sympathy, or to engender the bias and prejudice, of the jury. After a critical examination of the record before us, we find in the instant case no facts or circumstances in evidence which can be well
Furthermore, if the defendant believed that the instruction, because of its form and language, might be misleading to the jury, it was defendant‘s duty and right to request an instruction advising the jury in more explicit language respecting the measure of plaintiff‘s damage, or otherwise limiting the amount of his recovery, or specifically excluding from the consideration of the jury such facts and circumstances in evidence as defendant deemed inapplicable and irrelevant to a determination of the amount of recovery. [Sallee v. Railway Co., supra, and cases there cited.] Availing itself of such right and duty, the appellant herein requested, and the trial court gave to the jury, a cautionary instruction, which expressly and pointedly told the jury that they must not, in considering their verdict, and in the event that they should find for plaintiff, “allow plaintiff any damages for any injuries, disease, pain, anguish or impaired physical condition, which you find and believe from the evidence he had or suffered prior to August 17, 1925 (the date of the collision), nor any damages for any injuries claimed to have been sustained by the plaintiff in the collision mentioned in the evidence which you find from the evidence the plaintiff did not sustain in said collision.” [Italics ours.] Such instruction, given by the trial court at the request and on behalf of defendant, clearly advised the jury that compensation or damages could be awarded to plaintiff for such injuries only as he sustained as the direct and proximate result of the collision in evidence. Viewing the two instructions together, and as a single charge to the jury, we cannot say that the jury were not rightly or fully instructed as to the true measure of plaintiff‘s damages. [Crane v. Foundry Co., 322 Mo. 592, 621.] The assignment of error must be denied.
V. Lastly, appellant claims that the verdict and judgment are excessive in amount. It is urged that the evidence discloses that, if plaintiff sustained any injuries in the collision, they were very slight, and that, in the light of all the evidence, the award is clearly exorbitant.
The testimony tends to show that the force or impact of the collision threw plaintiff from the seat on which he was riding, and against the wooden seat immediately in front of the seat on which he had been riding, and that he fell upon the floor of the passenger coach. He was removed from the train, according to the testimony, in a dazed or semi-conscious condition, and immediately taken in an automobile to Levering Hospital in Hannibal, where he remained
A number of X-ray photographs were taken of plaintiff‘s anatomy, and introduced in evidence as exhibits on the trial, showing the upper cervical vertebrae, the skull, arms, elbow joints, and hands. Much of the contrariety of opinion among the medical witnesses at the trial arose out of their respective interpretations of the X-ray photographs in evidence. Indeed, the medical witnesses proffered by the plaintiff, himself, were not in accord and harmony as respecting their interpretations of the X-ray photographs. One of the medical witnesses proffered by plaintiff identified certain of the X-ray photographs as having been taken by the witness a few days prior to the trial, and he interpreted the X-ray photographs so taken by him as disclosing a fracture at the base of plaintiff‘s skull, and a fracture at the lower surface of the fifth cervical vertebra. Referring to the photograph of the skull, he testified: “The plate (photograph) shows the skull from the line of fracture itself; starts off to the left of the foramen magnum, that is, the hole in the skull where the spinal cord passes down; the line runs from the head down to the spinal cord; the line of fracture can be seen for about two inches; it is united.” Other medical witnesses testified that the X-ray photographs so taken and interpreted by the last mentioned witness were imperfect, hazy, smudgy, and “very poor exhibits,” and that it was impossible to read or interpret the same, or to say that such exhibits disclosed any fracture of the skull, or of the cervical vertebra.
Other X-ray photographs introduced as exhibits on the trial were interpreted by certain of the medical witnesses as showing evidences of an exostosis, or bone arthritis, in the region of the third, fourth, fifth and sixth cervical vertebrae, and of a bony protuberance on the fifth lumbar vertebra. “Arthritis” was defined by the various medical witnesses as “an inflammation of the joints,” and as being most generally produced by an infection, or as resulting from
Dr. Hoge, a neurologist, testified that he made an examination of plaintiff in December, 1925, and that his findings from such examination indicated that plaintiff was suffering from some disease or derangement of the central nervous system; and, in answer to a hypothetical question, hypothesizing the facts relating to the collision in evidence, he said he believed that the facts as hypothesized might cause or produce such a condition of the central nervous system, and that, in his opinion, such condition would be permanent.
Dr. Shoemaker, an oculist, testified that he had examined plaintiff‘s eyes in December, 1925, and again on the Saturday immediately before the trial in November, 1926; that on the last examination (immediately before the trial) he found “the optic nerves some-what atrophied, and a concentric contraction of the visual field, and the right eye, which was worse than the left, had a haziness in the chrystalline lens;” that plaintiff had thirteen per cent vision in the right eye in October or November, 1926, and had seventeen per cent vision in the right eye in December, 1925, when he first examined plaintiff‘s eyes. The left eye had seventy per cent vision in October, 1926. He testified further that an injury or blow at the base of the skull frequently causes an atrophy of the optic nerve, and that vision may be materially reduced in three or four months time by such an injury, but that a blow at the base of the brain would very likely affect both eyes instead of one.
The testimony of defendant‘s medical witnesses tended to minimize and belittle plaintiff‘s injuries, and to show that his injuries, if any there be, were slight and superficial in character and extent, except that defendant‘s witnesses were of opinion that plaintiff was suffering from an arthritis which antedated the collision several years. Defendant‘s medical witnesses testified that they found no fractures of plaintiff‘s skull, or other bones of his body, and found no displacement of the vertebrae, and that the several X-ray photographs in evidence indicated no fractures.
As we have stated above, there was a sharp conflict among the several medical witnesses respecting their interpretations of the X-ray photographs, and as to what the photographs show plaintiff‘s injuries to be, and as to whether the conditions shown by the
There is no accurate or infallible guide to be followed by an appellate court in passing upon the matter of the excessiveness of an award for personal injuries. The best that an appellate court can do in such cases is to exercise a sound and impartial judgment in considering whether the award is fair and reasonable under all the circumstances of the particular case. As we recently said, in Laughlin v. Railway Co., 275 Mo. 459, 472: “The most reliable rule for the guidance of an appellate court in determining whether a verdict is excessive, is that, if sustained by substantial evidence, it will not be disturbed, unless the amount is such as to shock the judicial conscience, or there are [clear] indications that the jury was swayed by passion, prejudice, or in some way unduly influenced.”
Considering all the circumstances of the instant case, as disclosed by the record before us, we cannot say that the verdict of the jury was the result of passion or prejudice on the part of the jury, or can we say that the amount of the verdict is so palpably excessive, or beyond the bounds of reason, as to shock the judicial conscience. The trial court, who viewed plaintiff and the witnesses on the trial, and was in better position to judge of the credibility of the witnesses and of their testimony than is an appellate court, approved the verdict of the jury, and did not see fit to order a remittitur, or to award defendant a new trial of the cause, although the excessiveness of the verdict was urged below in defendant‘s motion for a new trial.
PER CURIAM: — The foregoing opinion by SEDDON, C., is adopted as the opinion of the court. All of the judges concur.