219 Mo. 468 | Mo. | 1909
Defendant appeals from a judgment in plaintiff’s favor for $5,000. She is the widow of John L. Macdonald, injured while a passenger on defendant’s car on defendant’s cable road, October 26, 1902, while running round a curve. In about eight months and a half afterwards he died. There is no question but that he was injured and by defendant’s •negligence. Plaintiff’s theory is that such injuries caused his death. Defendant’s is contra. The trial was long. The issues were threshed out below closely and with ability. The briefs take a wide range. The instructions were many. However laborious a task, we shall undertake to condense the voluminous record without omitting vital matter.
After allegations immaterial to any question made here, the petition alleges:
“That in rounding said curve the car aforesaid in which the said John L. Macdonald was riding came to a sudden and violent stop, which was caused either by. the negligent and careless condition in which the appliances used by said defendant for going- around said curve were allowed to remain, or by the negligent and careless manner in which the gripman discharged his duty in managing and controlling said car, but it was either one or the other, or both, as plaintiff believes and alleges, and she is ignorant whether it was the one or the other. By said sudden and violent stoppage of*475 said car, said John L. -Macdonald was thrown violently forward and down, by which he was greatly injured, and which injuries so received by him caused his death, which occurred on the 13th day of July, 1903.”
The abstracted answer is a general denial. Plaintiff contends the trial answer had a plea of contributory negligence, but she files no counter or additional abstract. Not only so, but no issue of contributory negligence was submitted to the jury, and that feature, on any view of the case, is by-matter.
Save on the medical testimony, there is little or no dispute about the facts. The case made is this:
Judge Macdonald was between sixty-five and sixty-six years old when he died. He came to Kansas City from St. Paul, Minnesota. In St. Paul (as in Kansas City) his profession was that of a lawyer in full practice, though he had served in Congress and on the bench. The winter before moving from St. Paul, he was bothered with lumbago. Lumbago is an ailment of a rheumatic kind, indicated by pain in the small of the back. The occasion of his change from St. Paul to Kansas City, was, primarily, to find a milder climate to rid himself of lumbago or prevent its becoming chronic, if lurking; secondly, to better his business outlook. With these ends in view, he visited the South, seeking a location in Louisiana, Texas, and Arkansas. About a year prior, he had gone to Hot Springs and spent a few days at the baths there. In his exploring trip south, he again visited Hot Springs and took a few baths. This was in 1897, and in the fall of that year he settled in Kansas City. Prom that time until his injury, five years later, he was apparently free from lumbago or any other rheumatic trouble. He is described in the record as leading an active life, as being “a rugged, strong man,” an “industrious man,” weighing about one hundred and eighty pounds, about five feet ten inches in height,- “broad shouldered,” “muscular,” of an “athletic type,” temperate, with a*476 good appetite but restraining it, “a vigorous, strong man,” “a very temperate man,” “a well man,” positive but of a jolly turn and a bard worker. This, up to tbe time of bis injury.
On tbe 26th of October, 1902 (in prime health to all appearance), be, with bis wife, Mary, was returning from church. Suddenly, while bis car was going without check at, presumably, ordinary speed around a curve, the gripcar in the train was thrown from the track, the “trailer” on which he was riding was partly derailed, its front end thrown from the track, and he was violently projected ahead two or three feet, sidewise, against the immovable framework of the car stove. The cause of all this is left quite dark. One witness, speaking of the suddenness and force of the stop, said it was the same as if the car “had struck a house,” another (after the accident) saw a broken rail. Judge Macdonald was on a seat running lengthwise of the car, with the stove on his side. He evidently was thrown against it with whatever force would be given him from the momentum of a car having the speed of that one; and the force is described by the inflamed but pardonable metaphor of one witness as the same as if he was ‘ ‘ shot out of a cannon. ’ ’ Just what parts of his body struck the framework of the stove is not entirely clear. The visible sign of the blow was in the neighborhood of the left ear and side of the face, and covered a place the size of your hand. Other parts of his left shoulder and chest, evidently affected by- the blow, must be got at by his pains ensuing at once and those developing hard on his injuries. That he was badly hurt is put beyond all question. Being in a dazed condition, presently, on recovering, he complained of his shoulder, neck and head. He was assisted out of the car and into a near-by drugstore.
One witness, helping him from the car to the drugstore, noticed he put his hand to the left side of his chest, and we may say, in passing, that this involuntary
It would serve no useful or obvious purpose to go over the long history of his case. There was testimony put in by plaintiff strongly tending to prove that, from being a well man at the time of his injury, he became at once a sick man and continued a sick man until he died. Although he soon recovered from the visible wound in his head, yet he continued to have pain in his neck, shoulder and chest. He could not bear or wear a suspender on his left shoulder after that. He could not put on his overcoat without help and generally wore it with his left arm out of its sleeve. He lost appetite, pais sleep was broken, he had “less vim and snap,” became less assertive in his views and from that day his physical strength declined. The witnesses describe him as “growing gradually weaker,” he looked “haggard,” he seemed “worried and worn out,” and was easily exhausted by physical effort. He never again walked with the springing and rising step he had before. His weight, beginning with that time, gradually fell off and he had that in his countenance, gait and demeanor making him a marked man to his near friends and acquaintances — some of them physicians of excellent standing. Soiñe four weeks after his injury he began to go down town to his business office, but went later and came home earlier than was his wont. He complained of oppression in his breathing and, when walking with an acquaintance, he not infrequently took hold of his arm because of shortness of breath or pain
The tendency of the expert testimony on behalf of the plaintiff was to show that he suffered from angina pectoris. That is not a disease, speaking with scientific precision, hut it is a horrible strangling pain in the chest, affecting its victim with a sense of impending dissolution and originating in discrepancies in the heart, its arteries and valves, and the walls of those arteries, whether main or subsidiary, and the pain runs up through the left shoulder and down the left arm to the fingers of the left hand. We take it, the words, angina pectoris, though defined literally as “a strangling pain in the chest,” are as near a definition as the
Plaintiff put in proof from competent physicians tending to show that angina pectoris, or the diseased condition of the heart and its appurtenant arteries and valves to which the pain so named attaches, in at least some of its phases, could naturally be caused by shock and injury and that it might be reasonably expected to gradually develop from small beginnings until it finally progressed far enough to carry its victim off. The term “shock,” as used medically, is defined by one scientific gentleman on the stand to be “ an unusual injury that a person may sustain that depresses nerve centers and lowers away vitality very extensively. ’ ’ Lumbago is said by plaintiff’s experts to not be the phase of rheumatism affecting the heart. Heart trouble is said by them to arise now and then from inflammatory rheumatism, and decedent at no time had that.
Defendant put on medical experts, profoundly skilled in heart diseases, who took an opposite view from that entertained by the learned scientific witnesses of plaintiff and gave the jury different advice.
There are one or two hundred pages of this expert testimony, in which lawyers and doctors vie in a battle of wits with each other in an analysis exhibiting wide and keen research in the mysterious realm of heart diseases. It covers every phase of angina pectoris, which seems to be a most insidious and deadly trouble, sometimes existing without discoverable cause, sometimes referable to lead poisoning, rheumatism, gout, etc., thickening of the walls of the main and subsidiary arteries at the heart or irritating its valves, sometimes an incident to old age or intemperance, and which may originate from shock and traumatism. The testimony is laden with a luxuriant medical terminology quite useless for the administration of justice, and we have
In seeking to disturb plaintiff’s judgment, defendant’s learned counsel insist that reversible error got into the case below in the giving and refusal of instructions and in ruling on the admission of testimony.
Among those refused were two demurrers — one at the close of plaintiff’s and the other of the whole case.
There is a ground of reversal stated as follows:
“The court erred in permitting counsel for plaintiff to read the contents of medical books to, and in the presence and hearing of, the jury. ’ ’
Further it is insisted that the court erred in commenting upon the evidence during the progress of the trial.
Any other facts, necessary to develop and decide material questions made, will appear in the body of the opinion.
I. The first proposition argued is that the demurrers should have been sustained, for that there was no evidence that the death of Judge Macdonald was directly or proximately caused by the injuries sustained in the accident. But counsel argue ill, we think, in that behalf. Their argument is built up, for example, on the views that deceased went about his labors after his injury, that physicians were unable for several months to determine the existence of heart trouble, that angina pectoris can arise from so many and different independent causes (even from undiscoverable ones) that to predicate it of his injury is mere conjecture, furnishing no legal basis for the judgment. Other suggestions along that line are offered, but the foregoing will do for our purposes.
Evidently the fact that Judge Macdonald returned, in a crippled way, to his avocation could not be conclusive. It was a circumstance, but one for the jury. The heroism of facing one’s fate in civil life like a soldier does his in war, and performing one’s duty as best he
Nor do we have to go to physicians to find that medical science has not developed to the. point where a doctor, however wise, can tell to a certainty whether a disease exists in the heart for one, two, three or four months after an injury, or that such insidious diseases not uncommonly quite baffle diagnosis. It must be borne in mind, too, that doctors’ theories under oath on the witness stand are merely advisory in character. Juries can take or leave that advice on the condition only that it seems reasonable or not to them; and because doctors disagree, it is not valid reasoning to say that juries should also disagree, or should take the advice of one set as against that of another, or should throw to the winds their common sense and, with minds littered up with conflicting medical advice, be unable to come to any agreement whatever, even as sailors (tossed to and fro by contrary winds) reach no harbor.
In Sorenson v. Railroad, 36 Fed. 166, plaintiff’s intestate in September, 1883, jumped from a train at the instance of the conductor and thereby suffered severe bruises. He soon began to “droop and fail,” and in September a year later died. There was in that case as in this a suggestion that heart and aortic troubles existed prior to the injury. Physicians testified on both sides, and Mr. Justice Beewer,, speaking to the point, said: “Where medical witnesses disagree in opinion and theory, the undisputed history of the case is often the most satisfactory and controlling fact. In this case such history fully justifies the verdict. . . . Soon
So, in a very late case (Sharp v. Railroad, 213 Mo. l. c. 531), there is language in point, vis.: “If a man, well to-day, is badly injured, and from that time on sickens (with symptoms referable to his injury), and, languishing, finally dies, a disagreement among doctors as to the name of the disease on him at the moment of dissolution does not creaté a condition from which it can be said that a verdict one way or the other is merely guesswork.For, if there had been no physicians testifying as experts and the jury had been without medical advice, yet plaintiffs ’. lay evidence showed a cause for Sharp’s pain and suffering, and his visible approach to the grave in the steps he took, commencing at the place and time of his injury and ending there, are rational deductions within the right'of a jury in applying common sense to facts. The expert medical testimony was merely advisory, and, because the advice given to the jury by the opinions of the doctors differed, that presents no case for our interference.”
In the case at bar there was substantial testimony that Judge Macdonald came to old age hale and hearty. On a certain day in October he is thrown against the framework of a stove and struck a tremendous blow. The mere visible sign of his injury at the time was not great, but it would be dealing only with the surface of things to stop with that visible sign. The controlling fact in the case (deducible from its history) is that, traceable to that injury, he was never again a well man, and that, traceable to that same injury, after a rally at the start, he went steadily down
In the latter case it was finely said by Valliant, J.: “ The genius of our law does not claim for it infallibility ; it recognizes that there is an element of uncertainty that enters into every forensic contest, which human wisdom cannot always make certain, and its aim is to come as close to the right as the means at hand will permit. Under our system of jurisprudence the jury is the tribunal to which questions of this kind are submitted for determination, and with all their human liability to err, we have never yet discovered any better tribunal for the trial of questions of fact, even where highly scientific propositions' are involved. Science itself appeals to common sense for its recognition. ’ ’
That the demurrers were not well taken under the facts here may be deduced from a line of other cases cited by respondent’s counsel. [Hanlon v. Railroad, 104 Mo. 381; Walsh v. Railroad, 102 Mo. 582; Beauchamp v. Min. Co., 50 Mich. 163; Railroad v. Buck, 96 Ind. 346; Railroad v. Kemp, 61 Md. 74.]
II. Among the instructions given for the plaintiff was the following numbered 4:
“The jury are instructed that if they believe from the evidence that the death of John L. Macdonald was directly caused by being thrown against the stove on defendant’s car, then your verdict should be for the plaintiff, notwithstanding that you may further believe*484 from tlie evidence that he had suffered from lumbago or rheumatism provided that the jury further find that said Macdonald would not have died at the time, under the circumstances and in the manner he did die, had it not been for being thrown against said stove, if you find he was so thrown. ’ ’
Evidence was admitted over defendant’s objection laying a foundation for that instruction and it is contended the evidence was improperly put in and that the instruction is not good law. In other words,- defendant contends that .a cause of action can not be maintained for an injury “hastening” death. The rule is well established that an actionable wrong is committed under our Damage Act where circumstances exist outlined in the instruction criticized. For instance: Strode v. Railroad, 197 Mo. 616, was heard in Banc. In that case a new trial had been granted because of error in giving an instruction based precisely on defendant’s above theory (p. 621). In reviewing that ruling our •brother Graves, with the approval of all his brethren, said: ‘ ‘ This instruction was clearly wrong and should not have been given.(Citing Fetter v. Fidelity & Casualty Co., supra). In granting a new trial upon this point the trial court was right and were it not for other propositions its judgment should he affirmed.”
Referring to the Fetter case, it will he seen that the court approved an instruction with the following clause: “Provided that the jury further find that said Fetter would not have died at the time, under the circumstances and in the manner he did die had it not been for the accidental rupture of the kidney.” That proviso is the identical one objected to in instruction 4 in the case at bar. The Fetter case follows the reasoning of Freeman v. Accident Ass’n, 156 Mass. 351, and in that case it was well said:
“An injury which might naturally produce death in a person of a certain temperament or state of health*485 is a cause of Ms death, if he died by reason of it, even if he would not have died if his temperament or previous .health had been different; and this is so as well when death comes through the medium of a disease directly induced by the injury, as when the injury immediately interrupts the vital processes.”
We are cited to Jackson v. Railroad, 87 Mo. 422, and Gray v. MacDonald, 28 Mo. App. 477, as holding a contrary doctrine, but those cases must be strictly read in the light of the particular facts there held in judgment. In the Jackson case a man, mortally wounded by an officer making his arrest, was taken on board defendant’s train for transportation to Arkansas. The carrier was sued on the theory that such transportation was wrongful and that such wrong hastened his impending death. In the case at bar, we are not called upon to either criticise or follow that case in its ruling that hastening is not causing within the meaning of the Damage Act. The jury were told there to find against defendant if the act complained of resulted in ‘ ‘ causing or hastening his death.”
The theory of that holding has its root in the phraseology of the Damage Act, Revised Statutes 1899, section 2865, transmitting a right of action, viz.: “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another,” under limitations prescribed. In Gray v. MacDonald, supra, one of the facts dealt with was that after decedent was wounded by a mortal shot by another, the defendant Mt him with his fist. A careful reading of both of those cases shows that the point now up was not the turning one, nor are we called upon in this case to determine whether hastening is causing a death within the reasonable construction of the Damage Act; because, in this case, the instruction criticised put it to the jury to find that the injury “directly caused” the death of Judge Macdonald. If it were necessary to follow or reject the ruling in the Jackson case I should
We rule the point against the defendant.
III. It is argued in a brief, filed after submission, that plaintiff’s instructions erroneously enlarged the issues in the pleadings and permitted recovery without proof of the particular negligence specified in the petition. Plaintiff introduced testimony tending to show that the train while en route in rounding a curve came to an instantaneous stop and was derailed — throwing its passengers this way and that. It can hardly be contended-that defendant should (or did usually) stop its trains in that fashion. It was not plaintiff’s duty to plead, point out or prove specific acts of negligence resulting in this astonishing stop. We have held that if plaintiff pleads the specific acts of negligence leading up to the injury of a passenger, such pleading is tantamount to an admission that he knows the causes of the accident and, knowing and pleading -them, he must prove them and limit his right to recovery to such proof. On the other hand, it is well-recognized doctrine that it is good pleading to plead negligence in
We rule the point against defendant and put our ruling on the ground that from end to end the case was tried on the theory that defendant, for all practical purposes, conceded its negligence. Its own instruc
IY. . Defendant was allowed thirteen instructions as prayed, and another in modified form. It was refused seven. We shall not cumber the record with the instructions on either side. Those for the plaintiff were short, plain and direct. We see no fault in any of them. They proceeded on the theory that if this car came to a sudden stop, which sudden stop defendant could have prevented by the exercise of a high degree of skill, diligence and foresight, and if by said sudden stop Judge Macdonald was thrown forward and received injuries from which he died, then the jury should find for plaintiff. In another instruction, the jury were told that such sudden stop was negligent unless it was unavoidable and could not have been prevented by the exercise of a defined high degree of care. The fourth we have set out.
In defendant’s given instructions, the jury were told that if the exact cause of Judge Macdonald’s death was unknown or had not been satisfactorily shown, then their verdict must be for defendant. In another, they were told that the mere fact of decedent’s injury gives plaintiff no right to sue; that before they can find for her thev must find from the evidence that his death was directly and proximately caused by the negligence of defendant. In another, they were told that even though he was a passenger and was injured by the negligence of defendant, still they could not find for plain
The instructions refused for defendant were in some particulars covered by those given at its instance, but there is a series of refused instructions declaring that the jury, must find for the defendant unless there was such connection between the negligent acts of defendant and the death of decedent “as to bring it within the reasonable contemplation of the defendant that such death would naturally and probably result” from the negligence. Changes are rung on this idea in other instructions. One is that the jury must find that Mac-donald’s death “was such as a reasonably prudent person would anticipate would be the likely and probable result” of such acts of the defendant. The central idea in these refused instructions is that if the peculiar result (in this case, the death of Judge Macdonald from heart disease) could not have been anticipated by defendant, the finding should be for defendant.
It may be said, generally, that if an unheard of result is produced by an act of negligence quite outside the experience of mankind and which could by no possibility have been foreseen, then an action will not lie for that result. But this case did not require instructions based on any such theory. This, because there was no substantial evidence showing it outside of the experience of mankind that heart disease should result from a shock and injury like that happening to decedent, or that such heart disease should result fatally.
Again — waiving that view: A good rule is: “ The liability of a person charged with negligence does not
We find no fault with rulings on instructions.
V. In framing questions on the cross-examination of experts, counsel held in hand medical books and formulated questions from their language. The books were not read to the jury, but the jury could see that the examiner read from them. This method of cross-examination was objected to. The court, over objections, permitted plaintiff’s counsel to adopt the scientific terminology of the author and put the propositions to the witnesses obviously asserted by him, but repeatedly cautioned the jury that what was read from the book was not evidence and the jury should pay no attention to it; that the only thing they could consider was the evidence that fell from the lips of the witness along the line of verifying the propositions put by the examiner. Samples of these cautionary instructions are as follows (the court) : “The jury will not give any more weight to anything Mr. Karnes reads from the books than they would to any other questions Mr. Karnes asks, unless the witness answers questions in the affirmative, thereby making it evidence in the case. . . . . It is the answers of this witness, gentle
Error is assigned on this phase of the trial, hut the point is without soundness. It has been said that it is within the discretion of the court to permit medical hooks to he read to the jury (State v. Soper, 148 Mo. l. c. 235-6), but undoubtedly the better and generally accepted doctrine is that the contents of such books are not admissible as independent evidence. [17 Cyc. 421; Railroad v. Yates, 79 Fed. l. c. 587, et seq.] Judge Thayer in the last case puts the grounds of exclusion on, first, such evidence is not delivered under oath; second, there is no chance of cross-examining the author; third, medicine is not an exact science, doctors disagree, medical theories are subject to frequent modification and change.
But while not independent evidence, and the question is a vexed one, yet there is a legitimate use of such bqoks, at least, on cross-examination, where the testimony has taken wide range and where skilled witnesses, testifying as experts, base their testimony on their knowledge derived from books as well as experience, as in this case. Here, defendant’s counsel had notified some of his witnesses that he was appealing to, and asking his doctors to draw from, their medical knowledge running back, say, two thousand years, and which could only be preserved, if at all, in book form from the days when Socrates ordered a cock sacrificed to Esculapius, the god of medicine, and Hippocrates and Galen practiced physic in Greece and Italy. Under such circumstances, we see no- reason why counsel could not frame a proposition in medical science in the exact language of the author, and ask the witness whether he agreed to it, so long as this was done under the due guard of the cautionary instructions given by the court. Such is the doctrine of a learned and exhaustive note on section 440, Greenleaf on Ev. (15 Ed.), p. 579, where it is said: “Moreover, it is a proper method of
Mr. Justice Scott, in Conn. Mut. Life Ins. Co. v. Ellis, 89 Ill. l. c. 519, gives that proposition the indorsement of his strong pen, though stating that the rule is liable to abuse and great care should be taken to prevent such abuse. He there says: “.Assuming to be familiar with standard works that treat of delirium tremens, it was not unfair to the witness to call his attention to the definitions given in the books, of that particular disease, and asking him whether he concurred in the definitions. How could the knowledge of the witnesses, of such subjects, be more fully tested? That is, in no just sense, reading books to the jury as evidence, or for the purpose of contradicting the witness.” To the same effect is Hess v. Lowrey, 122 Ind. l. c. 233, et seq.
In State v. Wood, 53 N. H. l. c. 494-5, Sargent, C. J., speaking to the point, said: “As to Dr. Ferguson’s cross-examination, we see no reason for any objection to it. He had stated, as well he might, on direct examination, his knowledge of a particular subject, not from any experience or actual observation, but from what he had derived merely from reading and studying medical authorities. Then he was cross-examined as to that general reading, not by putting in the books, but by inquiries whether, in his general reading, he had not found particular theories laid down conflicting with the theory he had advanced as the result of his reading. Collier v. Simpson, 5 Car. & Payne 73, goes further than the present case. There TiNdal, C. J., in speaking of a medical expert says: I think you may ask the witness whether in the course of his reading he has found this laid down.’ And that was upon direct examination. The Chief Justice further says, ‘I do not think that the books themselves can be read, but I do
We rule the point against defendant.
Other assignments of error are made and discussed. For example, it is contended that the court made comments • prejudicial to the defendant in the progress of the case. We have considered these assignments one by one, hut find no soundness in any of them, and shall not prolong the opinion by discussing them.
Our conclusion is that the ease was well tried and that the judgment should stand. It is, accordingly, so ordered. Let it he affirmed.