123 Mo. App. 499 | Mo. Ct. App. | 1907
This is an action for personal injury alleged to have been received by the plaintiff just after she entered one .of defendant’s street cars as a passenger thereon. The result in the trial court was for the plaintiff. It appears, from evidence in plaintiff’s behalf, that when she entered into defendant’s car and before she had time to become seated in one of the seats, the car was suddenly started forward with.a violent jerk, which threw her with violence against a stove and on to the floor of the car, whereby she was seriously injured.
The first objection to the judgment is that error was committed in not sustaining defendant’s motion to strike out a question asked of a certain physician who had waited upon plaintiff. Plaintiff’s counsel asked: “Now, doctor, you say she seemed to be suffering great pain? Answer: Yes, sir. Question: Now to what do you attribute that? Answer: Attribute it to the injury she told me of, I know of no other reason for it.” Defendant’s counsel then moved the court “to strike out that question because it is not a proper hypothetical question; based upon statements of a party, not evidence, does not state all the facts in evidence; gives the opinion and conclusion of the witness upon an issue of fact which it is the duty of the jury to try and determine.” Which the court overruled.
The objection was not well taken. No reason appearing to prevent it, the objection should have been made before the witness answered. It is not proper tq wait, or accept the chance to see if the answer will be favorable. [Foster v. Railroad, 115 Mo. 165, 183; Martin v. Block, 24 Mo. App. 60.]
Exception was taken to the action of the court in sustaining an objection to a hypothetical question propounded to a physician called by defendant. We believe
Objection is made to one of plaintiff’s instructions in regard to a preponderance of the evidence and the right of the jury to believe a less number than a greater number of witnesses. We can discover no possible objection to the instruction. It clearly stated the law and it was applicable to the case.
There is no error in the record and the judgment is therefore affirmed.