*1 28G] 60l TERM, Vol. 1920.
Mahany Railways v. K. C. Co. pages carefully VI. We the considered have typewritten clearly evidence. made a snbmissible case. jury might The defendant, well have the found having after out restaurant where been ordered of the provoked quarrel employed, a Reed Case for Jury. premises, him own assaulted and heat on his him when and, revolver Reed over the head with a inflicting fleeing in a from him moral him, hack, shot the the ver- disclose evidence does not wound. passion prejudice. Doubtless dict was the result of youth previous the defendant’s considered good quiet mitigation reputation peace of his fair trial. had a offense. The defendant judg- Finding error in record, no reversible All concur. is affirmed. ment MAHANY v. KANSAS CITY RAILWAYS COM-
O. W. Appel- SONS, D. PANY W. NEWCOMER’S lants. Two,
Division March 1921. Imputed Passenger. Driver of NEGLIGENCE: Of Automobile: 1. pall-hearers being transported plaintiff and other Where by undertakers, operated carrying an automobile who were them by conducting on account of the consideration them received - funeral, plaintiff had no over the control driver directing way automobile and was in movements car, place its collision with a street and the time and collision very time occurred a motorman short and driver after alleged negligence other, came within view of each au- imputed plaintiff as matter tomobile driver cannot be of law. a Approaching Increasing Speed. -: .Track: Automobile: Clear railway principle company, in the that a street absence of evi- contrary, may entitled dence track clear run its law, prohibited rapid speed, application at a has no cars unless automobile, there is substantial evidence that where in which riding pall-bearer, plaintiff was as a the time left cemetery car, plain struck street until view of the motorman, driver, any stop, indicating and its without intention to crossing, hour, proceeded per at the rate five miles towards the SUPREME COURT OF MISSOURI. occupied position peril, until the automobile oil motor- man, putting slacking instead of street under control' and car speed, speed twenty-five thirty per its increased the miles *2 railway by hour. can to evidence- Nor a demurrer the the offered company sustained, circumstances, theory under such on be the a, justified by signal that the conduct of the motorman was from crossing, proceed the chauffeur over the the chauffeur to where signal gave testified that he and he whatever is corroborated by testimony passengers the in the automobile. of ,1 Approaching Crossing: NEGLIGENCE: Automobile Demurrer. Where a there was about a covered station 140 feet the of from center public crossing tracks, highway the at which cars railroad street usually stopped, and the motorman and testified that conductor the stop crossing, speed street car did not at this but increased to its twenty-five thirty hour, or miles an and the driver of automo- an crossing bile, approaching speed hour, of at a five miles an tes- the railway tified that when on the he drove tracks his automobile was perfect stopped instantly, under and could have been and control that, approaching danger zone, plain in before the view was every of the street and saw its between the station car movement crossing, ordinary not exercise either and driver did the said degree care, highest the and a to of of the demurrer passenger injured plaintiff, a the hired automobile who was in in by automobile, collision, properly the of the was the owner offered refused. Dangerous Speed. Railway: Instruction: An in- Street 4.-: passenger plaintiff, in a hired automobile a who was struction public crossing, injured a car at a street when collided against railway telling that, jury to in order find street company guilty negligence they company, of that the was find must negligent, dangerous operating excessive a and in street car negligence failing speed, guilty of of have rate and was in control, by reason of said reasonable and car under negligence joint company negligence, and the of the de- injured, automobile, properly was stated the fendant owner law. Signal Chauffeur: Instruction. -: -: The court
6. by railway modifying an instruction offered in com- not err did telling pany "if the automobile which driver of riding signaled plaintiff come on with his motorman to was against car, plaintiff defendant” said so to recover not entitled plaintiff automobile the driver read “if as to car, riding signaled on with his and to come the motorman was thereon, acting signal, and as relied such said motorman saw TEEM, 1920. Vol: rely signal, prudent person plaintiff such then liad on rislit from said entitled defendant.” to recover Newly TRIAL: Discovered. 6. NEW Evidence. Defendants are not en- ground newly on the to a discovered evidence titled new trial relating plaintiff’s injuries, injuries where such extent fully extensively petition, they were stated in his used no effort, diligence inquiring neighbors from his and made no know, any persons might who the facts which discover up newly as- set their evidence. motions discovered An signment guilty the trial fraud deceit at testifying 'injuries cannot extent of sustained ground newly where discovered evidence defendants failing guilty of tbe inexcusable to ascertain facts before trial. Physician: Injuries: Attending EVIDENCE: Extent of Conclusion injured Testimony. Based on Plaintiff’s he was After weeks, hospital while there treated in a Missouri for two injuries, *3 physicians, and some three bruises who found Kansas, there to and there- but no broken He went bones. up prescribed him of after no for to doctor the time examined trial, physicians years three who treated the two later. The him trial, they injhry the but had not at time of the testified at the him, him, requested to determine been to examine his examined they condition, present After before were called as witnesses. detailing they plaintiff behalf, testified, in his own at had testified heavy limp, among length injuries, he his others that had a injury jury, due to to an exhibited the which he said and testify hip. physicians ex- Then were called the perts three the testimony. opinions upon plaintiff’s Held, to base their and illegal, may unusual, pursued not but and be that course the justice closely orderly of should be scrutinized the administration thereby advantage court, has been by obtained unfair the and anif granted. trial a be new should Expert. testimony of -: Conclusions of The -: -:
8. bounds, expert but not should reasonable an admissible within opinion jury, expert’s province the nor the substitute invade upon jury them. the facts be decided that of ultimate the - express permitted opinion expert as to not should be conjectural speculative not based It must on matters. be possibility. mere Expert: Opinion Permanency Injuries: Rea- -: -: opinion expert may express his Certainty. an While sonable answer, permanent, injury an whether will criticism, judicial that must show to stand the test order opinion de- to a reasonable follow indicates will which his result certainty. gree of 604 SUPREME COURT OF MISSOURI.
Maliany Injection 10. EXCESSIVE VERDICT: of Harmful Facts'. Where it was alleged petition operation performed that an injuries, throughout on account of his hut the trial expert witnesses, his counsel one of his over the repeated protests defendant, improperly got before the operation performed, resulting serious plaintiffs had been emasculation, any showing without necessary it was made injuries accident, that he received in the is manifest operation injected that such and its natural effect were into the illegal purpose augmenting case for plaintiff's damage, the size effect, verdict'makes manifest had that appellate require court will not a remittitur to be filed balance, affirm verdict for the but will reverse and remand trial, ground cause for a new defendants have not had impartial fair trial. Appeal from Jackson Circuit Court.—Hon. E.- Darnel Judge.
Bird, ahd remaNded. Reversed appellant, Charles N. Sadler for Kansas Rail-
ways Co.
(1)
interposed
plain
demurrer
at
close of
tiff’s evidence and renewed
close of all
evi
sustained,
.(a)
dence should
been
No
have
speed
No common law excessive
shown.
was shown.
Pope
Ry.
Railroad, Mo.'239;
Co.,
Lann v.
Petty v.
Mo. 674; Theobold
Co.,
Rj'.
Transit
191 Mo.
Green v.
142:.
*4
rely
'(b) Plaintiff could
on driver
if he
even
Ry.
Leopard
guest.
Fechley
v.
Co.,
214
v.
268;
S. W.
App.
Pryor,
119
367;
Traction
Burton
198
Co., Mo.
v.
(c)
App.
Marsh v.
104 Mo.
587.
1117;
Railroad,
S. W.
speed,
running at
if car was
excessive
con
Even
right
tributory negligence to re
bars his
Pope
242 Mo.
Rail
Railroad,
232;
v.
Green v.
cover.
169;
Mo.
v.
131;
Railroad,
1921
Reeves
215 Mo.
road,
215;
191 Mo.
v. Rail
Sanguinette
Railroad,
v.
Schmidt
Mo; 550;
Railroad,
497;
Mo.
Mockowik v.
196
196
road,
McCreery Ry.
(2)
3Í.
221 Mo.
The court erred
Co.,
v.
605
TERM,
Vol.
1920.
(a)
giving
by plaintiff,
in
instructions
asked
In-
by “negligent,
B fails
define
is meant
struction
what
dangerous
speed.”
excessive and
v.
rate of
Slezak
App.
Ry.
Day
702;
Co.,
v. Citizens
Co.,
Transit
142 Mo.
App.
App.
81 Mo.
v. Transit
97 Mo.
471;
Co.,
Gebhardt
(b)
381.
which to
There
no evidence
base
Rawling
same.
Jordan
20-2
v.
Co.,
418;
v. Transit
Mo.
Boyd Ry.
(c)
Co.,
175 S. W.
Mo. 54.
Frisco,
935;
v.
236
pleadings. Bergfeld
Dun-
Broadens issues
v.
made
652;
202
-203
ham,
253;
Dunham,
S.
v.
S.
W.
Sims
W.
(3) The
Co.,
v.
erred ground 2022; and deceit. R. sec. of fraud S. (5) App. Ridge Mo. 541. The verdict Johnson, v. Ry. Rodney v. 396; 234 Mo. Co., Clark is excessive. Ry. Lyons 143; 253 Mo. Railroad, 676; Mo. Co., 305; Co., Holzmer v. v. Coal Dominick Gibney Mor- Transit 204 Mo. 169 S. W. Laurence, rell v. appellants, Holt for and William G. Gubbison K.
J. Sons. Newcomer’s D. W. failing
(1) sustain erred The trial court close of Sons Newcomer’s D. of W. demurrer testimony of all of the testi- the close and at give failing peremptory instruction mony to (2) giving In- court erred requested them. (3) by plaintiff. requested court The trial A struction ground of failing grant trial on the a new erred *5 606 SUPREME COURT OP MISSOURI.
Mahany v. K. G. statutory ground, newly on evidence, discovered every provides substance that 2022, which .Section practiced by one has been case a fraud deceit where parties court is satisfied other, or the on trial committed, a new perjury has been or mistake Hoyt, granted. 164 Mo. Inv. Standard Co. v. should be Ry. Fogelsong, Ham- In 341; Col. v. 42- Jensen 124; Co. v. App. Packing Y. burg 48 N. 23 Div. American Co., Bangor Supp. 91 Atl. Railroad, 948; Southard v. 630; Murray, v. v. 91 Mo. 43 Mo. 103; Martin, State Rickroad App. Ry. v. 238 Mo. v. 597; Co., 247; Lessenden Waddell Ry. Ill S. 164 Mo. Co., '542; McDonald v. Railroad, W. App. Taylor Ry. 56; v. Lawrence, 363; v. 203 Mo. Morrell City, Co., Mo. 239; 564; Kansas 209 W. v. S. Lundahl Ossenberg Young v. v. 421; Chemical 218 S. Co., W. Lusk, 268 640. Popham respond- for
Aiiuood,. Wicker Hill sham, & ent. allegation plaintiff’s petition against
(1) Negligence clearly proven. both defendants was imputable plaintiff: driver of the automobile Ry. Co., v. Becker v. Co., 142; 189 Mo. Sluder Transit App. 586; Railroad, v. 104 Mo. 549; Marsh Ry. Montague 936; Prvor, v. Burton v. S. W. Harvey, Hun- 249; Newton v. 202 W. 1117; 198 S. S. W. Ápp. ger Sedalia, 632; 66 Mo. Profit v. (2) occupied App. 375. Plaintiff 91 Mo. position passenger hire. The of a automobile was. part furnished defendants Newcomer’s Sons as a paid Mahaney service for it. the funeral right of control over the had control driver of Contributory negligence plead- was not automobile. cannot relied as ed, defense. and "therefore Arky, Rys., Hensley 219 Mo. Aronovitz K. C. App. v. Traction Co., 214 W. Johnson 176 Mo. S. (a) given request A B Instructions 174. plaintiff clearly informed to what under the TERM, Yol.
Maliany Railways against joint liability law constitute would eacli of (3) denying The court did not tortfeasors. motion err in alleged new trial for on account of so-called “fraud deceit.” This a matter sole- and was addressed ly judge to the trial discretion of the and record this will discretion was in show that abused. Absent nowise gross question presented discretion, on abuse by 716; court. Eads, review this Callison v. 211 W. S. (4) point 222 Ehrler, O'ncken v. 1047. ad- S. "W. by appellants the court committed error vanced grant ground refusing trial in motion new on wholly “newly evidence” merit. without discovered the, requirement single by appel- was Not met law entitling ground. .them for new trial lants State Speritus, Grocery 41; v. 191.Mo. Go. v. 183 Co., 72. Hotel (5) App. App. Railroad, 199 Knox Mo. v. permanency In injuries, of the seriousness and view excessive. the verdict nowise Hays Rys. 219 v. Railroad, Hurst S. W. United App. 608, 656;W. S. Greenwall v. 156; Dunton Railroad, W. Fed. Hines, 224 S. alleges, among petition other O. The RAILEY, plaintiff April things, 24,1917, that on attended a funeral by one and Newcomer, defendants conducted funeral transported party by said in con- defendants, ducting funeral; that in said consideration of the funeral paid plaintiff bill defendants Newcomer, to said and party, of said other members funeral were trans- by ported cemetery; and them, in vehicles from the after the and the burial, while party being transported by members said said cemetery, Newcomer, defendants from the as aforesaid, operated large funeral automobile, said defend- agents, ants and their Newcomer the automobile was public along highway point driven to a certain near cemetery, and near the town Washington, of Mt. County, Jackson highway Missouri, where said crosses system railway and tracks of defendant, The Kansas SUPREME OP COURT MISSOURI. Railways Co. C.K. there, a street and Railways Company; then tliat Company, funeral Railways said and operated ear said approached riding, so automobile, by the several time; that about the same said intersection of said joint and carelessness and controlling said managing operating, Company in agents their Newcomer car, the defendants street controlling- operating managing, servants said car and street automobile, the said funeral said to- and ran collided time at said funeral automobile whereby plaintiff great gether, violently force, *7 against portions forcibly of said auto- various hurled was objects in contact with mobile, caused come injured. thereby severely permanently and was and injuries alleged petition in detail the describes The charges by sustained to have been damaged the extent of etc. $50,000, has been general a the above-named defendants Each of filed denial. May on 1919,
The trial commenced before 12, was Judge jnry. Bird a Railways undisputed Company
It is the was operating railway line of between Kansas a Independence, operating Missouri, that it was injured plaintiff April street car is on It uncontroverted also defendants Newcomer conducting the undertakers were said funeral, and that paid plaintiff for the consideration them and the other pallbearers transported were to be Washington to Mt. Cemetery in the return, automobile of said defend- It is ants. also uncontroverted that after the funeral plaintiff pallbearers and about four five of the above riding in the Newcomer automobile when injured. The evidence tends Washington show “Mount Cemetery” is located south of railway track. At east cemetery end of the public highway there awas extending north and south, which crossed the railroad practically right angles. track at A short distance west TERM, 1920. Yol. K. C. public said track crossed railroad
of where the street side of north on is a station road, covered there twenty-five feet west track, located railroad about post The front vestibules evidence. a in the mentioned stopped going usually about are of street east cars r. get It post, passengers or off the ca where cemetery feet of the about 106 from the entrance five railroad track. It about four north to the cemetery per up-grade to the railroad cent from actual measurement, track. The distance crossing post to the center mentioned, above injured, is 50 or About where 51 feet. post sign, designated “Mt. 90 feet west of is a said Washington.” pedestrians go get This is where off cemetery through gate. highway into the runs and then runs cemetery, northeast as it leaves practically north across track. The railroad auto reason mobile, said collision, was carried east down twenty-six the street car track about feet from the center highway. seven-passenger of said awas Cadilac, n weighed pounds. automobile, about 4,000 The ac day. cident occurred about the middle of street traveling car was going east, and the automobile north, place. when the collision took The east end street *8 car struck the near its automobile middle carried and twenty-six the above distance of feet. Plaintiff was injured collision, the and both sued defendants to re damages cover sustained on account him, alleged negligence of defendants. repetition,
In order to avoid the remainder of the opinion. facts will be considered in given The instructions and refused, as well as the rulings during progress of the court of the trial, will be necessary, considered, opinion. far in against returned a verdict for $30,000 both judgment defendants and was accordingly. rendered De- separate fendants filed motions for new trial, and separate judgment. motions arrest of All of said 286 Mo —39 MISSOURI. OP COURT SUPREME Railways K. C. v. appealed defendants and both overruled,
motions to this court. Company, defendants
Í. Both the strenuously court insisting trial Newcomer, are overruling respective demurrers their committed'error to these As case. the conclusion of the evidence at evi- based the same contentions, not are testimony tends of each as the Separate Defenses. dence> injuries dispose responsibility to of shift necessary be defendant, it. will the other separately. respective contentions their considering- the evi- demurrer to either II. Before alleged important to determine whether the it is dence, imputable to driver was of automobile plaintiff. sitting* on the rear seat latter same, the west and on side automobile
the from ing. oncoming approach- car was which the Negligence: Imputed riding- is-undisputed operated by then vehicle, in a hired defendants New undertaking business, course of their comer in the furnished this defendants Newcomer vehicle pallbearers, carried on account plain had the consideration received. The tiff had no over control driver of machine, anyway directing not in his movements at the time and place accident, the collision and as occurred in such gripman short time after the and driver of the machine opinion came each view of are of other, we that alleged negligence automobile driver should imputed as a [Moon matter of law. v. Co., Transit l. following; St. Louis 237 Mo. c. 434 City Neff following; Cameron, v. 213 Mo. l. c. 359 Petersen v. Transit c. l. Sluder following; Co., 189 Mo. l. c. Transit 139 and Becke Pac. 102 Mo. & Davis L. T. Co., 222 S. W. l. c. *9 Montgomery, 885; v. Lawler Leapard Rys. S. W. l. 857; c. Co., 214 S. W. TERM, Yol. .
Maliany v. K. C. Montague Pryor, 1120; l.W. c. 198 S. 268-9; Burton v. Ry. 936; l. Marsh W. c. 193 S. K. v. M. & T. G. West App. Profit C. l. c. 104 Mo. Railroad, Munger of App. l. 91 Mo. c. ern App. 631-2.] c. l. Sedalia, 66 Mo. Railways Company insists that
III. The defendant twenty-five right track, and that to a clear had the it per thirty rate an unreasonable hour was not miles speed place of accident. car at time and its of by the examined the cases We have cited of Motorman. Railways Company, but do not consider Negligence applicable facts this are to places may country, case. be true and in sparsely population where the settled, a railroad com- pany, operation in the train or cars, its the absence contrary, may proceed theory evidence to the clear, that its track and run its or trains cars over rapid speed, prohibited by same at a rate.of unless law. principle just applica- announced, has no however, tion case, to the facts because there was sub- plaintiff, tending offered in stantial behalf of to show from the time the automobile left the ceme- tery, plain until car, struck street inwas view of the motorman. Plaintiff’s evidence likewise tended indicating any show, chauffeur, without in- stop, proceeded journey, tention on his at the rate per crossing, miles hour, five toward the until he occupied position peril; a that instead of the motor- putting slacking speed car man under control and speed as to so avoid he collision, increased twenty-five thirty per hour, miles and ran his car into containing pas- automobile and sengers. justification The motorman, of his conduct, said he signal received the chauffeur, under- stood an invitation to crossing.' come over the gave signal chauffeur testified that he whatever motorman, and he is corroborated as to this fact by at if one, least passengers not more, of the *10 MISSOURI. OF COURT SUPREME y.
Mahany C.K. then chauffeur, jurors believed the If the automobile. was finding motorman justified that in they were under failing car his to have guilty in of twenty- speed to increasing car of the in control, and passengers of per thirty while hour, miles or five crossing. peril near the in the automobile Railways Company, was defendant of The demurrer properly overruled. insist that likewise Newcomer defendants
IY. The have should been their demurrer respect in made, heretofore The observations sustained. Company, apply Railway negligence of the to the in equal the chauffeur force to the conduct charge The motorman the automobile. Chauffeur's Negligence. stop “Mt. he not at Wash- testified, that did testimony in ington,” corroborated his charge respect car. the street the conductor he on the rail- testified, that when drove chauffeur gear, was under car was track, road intermediate stopped instantly. perfect control, and could have been tending We then have before us substantial-evidence following facts: That to show street car did speed stop twenty- post, but at increased its per thirty reaching five or hour miles before the cross- ing; approaching danger that the before chauffeur, plain zone, view car its street and saw every post crossing; movement between that he ought knew, either to have that a collision known, likely speculated unnecessarily to occur; that expense to passengers, results, at the of and failed any degree to exercise safety care for the of those dependent upon him. The trial court committed submitting error negli- the issue gence of the defendants Newcomer, under the circum- stances of the case. may passing paragraph observed 9 of page
Section 12 of the Laws 330, was in force the date of this accident, said act has been TERM, Yol. Railways Co. to mean court Division of this by tlie
construed oilier the accident, time ease, at that the in this chauffeur degree highest of care required exercise the S. very prudent [Jackson person use. would Railroad v. C. & 358; Monroe A. Bell Tel. W. Rys. 66.] Threadgill Co., 279 Mo. U. *11 ordinary would care, we Even if rule of tested justified holding, that of law, not matter feel in as a negligence guilty of at the chauffeur aforesaid was not place time of said accident. and plain-
Y. It claimed that is defendants Newcomer Instruction A. instruction is tiff’s is erroneous. Said negligence relating alleged based the facts to the required above-named defendants. jury Hie to to Ordinary Care. find the chauffeur failed ordinary attempting pass exercise care to while crossing controversy, over the in before could a verdict plaintiff. be returned for If the law as apply in the declared other Division case, held to to de- these got right expect, they fendants off than better had as were entitled ato verdict under instruc- said tion “A” if ordinary was in chauffeur the exercise of care at the time of said conten- collision. The above tion is'without merit and overruled. Railways Company
YI. The defendant contends given that Instruction plaintiff, at the B, instance of given. erroneous and should not have been It related change negligence against to the car street com- pany. against In order to find as said Rail- ways Company, jurors required guilty negligence, latter was Railway operating negligent, said car at street Company’s Negligence. dangerous excessive speed, rate of guilty negligence failing have the street car under plaintiff, by reasonable control, and that reason negligence, joint of said or the of both de- injured thereby. fendants, was prop- Said instruction erly ‘‘ordinary “negligence.” defined care” and It was -OP MISSOURI. SUPREME COURT t-H-^n Railways Maliany given instance tire harmony Two, Instruction with Company, con- Railways tire two instructions of said together properly law. stated sidered complains Railways Company The defendant VII. modifying its instruc- court in the trial action of giving as modified. same tion numbered follows: read instructions Said jury you if find instructs i£4. The court driver fro mthe and believe signaled riding plaintiff the' which automobile under cir then such his car, motorman to come recover entitled cumstances Company, and defendant, the Kansas your for said defendant. must he verdict you if find court instructs “4%. and believe evidence that the driver the the from the signaled ’riding, automobile in motorman come on with his and that said motor- car, signal, acting man such relied thereon, saw *12 rely prudent person right signal, had such plaintiff then under such entitled is not circumstances City Railways defendant, recover from Kansas Company, your verdict must and said defendant.” modifying
The court below error in committed no giving in 4, said and instruction the same as modified. complaint The above devoid of merit and overruled. 5, VIII. Instructions asked 8, 7 and defend- Railways Company, properly were and refused view
of the case. These instruc- sought charge plaintiff tions Imputed Negligence. imputed chauffeur, and have fully Proposition been considered under Two of opinion. charge IX. Both defendants guilty was testifying of fraud and deceit the trial of the case, injuries. urge They support as to the extent of his- of their this in respective for a motions new trial, and also TEEM, 1920. 286]' Yol. ground oil he sustained ask that latter tile
Newly care- newly We have discovered evidence. 0f by defend- filed fully motions each of the read Discovered Evidence. relating filed all the affidavits well as as ants, manifest, evidence. alleged newly discovered and said motions examination the most casual any diligence appellants failed to use affidavits,' that plaintiff,-and locating learn- the residence whatever neighbors, facts ing, the same from his prior to the trial, newly urging discovered evidence. now are as charge funeral, Newcomer were The defendants riding passenger pallbearer, was as a aas and (cid:127) They must have been informed automobile. in their expecially accident. after the to his residence, appellants petition claim- both advised injured ing to have been follows: greatly in- wrenched, and “His left bruised, arm jured right the thumb was broken thereof hand right and ; his hip hip dislocated; his left dislocated; his ruptured greatly injured; he was bruised wrenched, and separation wall; of his abdominal his and suffered a spermatic and were bruised and cord scrotum, testicles, injured privates his sexual and lacerated and his entire powers impaired destroyed; procreative and almost and injured, greatly bruised, his and ribs and sides were lungs were wrenched bruised, made his chest sore; congested; organs respiratory and heart were his jarred injured; legs were bruised and strained; his spine his and back muscles thereof were wrench- and the urinary organs kidneys bruised; ed and were deranged, injured; greatly bruised, his head and greatly causing bruised, twisted violent neck pains neck; headaches and in his head and brain, *13 ' spinal system cord, entire nervous nerves, were impaired, greatly injured, shocked, and the nerves, ligaments, body blood and muscles of vessels, his whole injured.” greatly wrenched and appellants Tt the failure of is clear to have before the court at the trial the facts stated their said
616 SUPREME COURT OP MISSOURI. of reason was by aforesaid, the affidavits motions and are They diligence. of lack their own trial convict court to here to ask this position their overruling discretion in court of an abuse judicial under judgment, trial and in arrest for a new motions The conclu in this record. presented circumstances line of deci sion announced is sustained just long Miller State, in this some which are as follows: sions 380; Ry. Co., Cook v. 103; v. 40 l. c. 56 Mo. Whitson, Mo. v. Snyder Fretwell 77 Mo. v. 77 Laffoon, 26; Burnham, Mo. Maxwell v. 85 Mo. Shotwell v. 52; Ry. Co., 106; Mc 101 l. Tittman v. Elhinney, 682-3; Mo. c. 107 Thornton, sRy. Co., Mo. 140 l. 510-11; Thiele Citizen Mo. c. 338-9; v. v. 24; State 191 Mo. State 232 Speritus, Whitsett, v. v. 511; Walker, l. v. 321; Sang State 250 c. St. Pool, l. Louis, 262 Mo. 467, 347; c. 171 S. W. Claxton 197 349; S. W. State 210 S. l. c. Arnett, 84; W. For Hines, 104; menlo v. 225 W. MacCallum S. Wilson Co., S. Printing 158-9; W. Met. Ry. Eidson v. St. Co., 209 W. c. 577-8; S. l. Owens v. Fanning, S. W. 64, l. c. ;72 v. M. & T. Knox K. Mo. App. 226; 203 W. S. Stahlman v. Rys. Co., 183 Mo. App. l. c. 149, 166 S. Co. v. Hotel Grocery W. Mo. App. Aaron v. Met. St. Ry. Co., 159 Mo. App. l. c. 144 S. W. inexcusable negligence defendants, failing
to ascertain from the neighbors acquaintances extent of his injuries prior to the date of trial, petition when claiming to be so badly injured aforesaid, did trial court justify them a trial granting based new discovered newly The foregoing evidence. appellants contention of ac- overruled. cordingly
X. appellants is contended that error was trial, during committed progress to their prej- udice, in to the respect admission rejection and. of evi- dence. are some There remarkable features connected trial with the of this case. Plaintiff was injured *14 Vol. TERM,
Mahany Railways v. K. C. Co.. April Independence, hospital in He the 24, 1917. atwas days, treated Missonri, about two weeks and two Twyman Nixon. while Mather, there Doctors They injuries, but- found him and some other bruises on hospital discovered no from the broken went bones. He any to his doctor home in and never had Kansas, prescribe up of the time examine him or for him to the years trial, all three over two He had thereafter. not call trial,
above doctors but did as witnesses on either them to to deter- examine him at that time, put physical on mine his condition before testify. contrary, stand to took range On behalf, stand in own and covered wide detailing alleged injuries. The above doctors were testify experts express then called opinion upon plaintiff’s testimony, in their based rela- tion to the various matters submitted to them. "Weare pursued prepared say, respect that course illegal, orderly matter but in administra- above justice closely tion of should court scrutinize such advantage proceeding, any an unusual if unfair has thereby new trial been obtained should awarded. reading testimony, It manifest from history connection grievances case, some-of complained graphically of, and described be- may jury, resulted fore the from have causes other than could have been those which attributed to said collision. may been of them have attributable Some to natural negligent no relation to causes which sustained acts complained respondent. plain- As an illustration, in chief, tiff as follows: testified you limp. you
“Q. Now, I notice that have a Have injury? limp since A. had that this Yes, sir. way you show
“Q. Just in what walk on leg. you ordinarily walk as (Witness Just do. walking jury.) front of you Why heavy
“Q. do have that limp, Mr. Ma- hip. hany? A. Well, . . . MISSOURI. OP "COURT SUPREME legs your along at all get you
“Q. Are able No, A. you here? limp heavy without *15 sir.’’ tending that to show proof offered was no
There had collision, that it limp the or from resulted said three case. The purposes of the been assumed for the during two him the treated who examined doctors injury following accident discovered the weeks limp. heavy for account this could plaintiff as follows: Dr. for Nixon testified “I-got we him after first, and in condition to move stripped got off and we him sanitarium, him to took just injuries. body bruised was over He looked body, hips places and shoulders in various over the just sides, condition.” a bruised further chief: This witness testified right with be the “Q. What seemed to trouble hip, a condition Well, A. was bruised Doctor? there X-rayed hip, plate there. We but the did not show any bony injury. not show were broken?
“Q. Did that the bones broken; the bones were no, A. Did that sir.” not show respect was all the doctors found, this Now, years this the trial. matter, two before Neither doctor any him at trial, the date of at examined injury. during first time than weeks of his It is his two any there were bruises on not even claimed that heavy limping leg, trial, at the date of nor does it appear anything wrong that was limp leg except that time, which had been showing, developed the accident. after On above experts, that this to show doctors were examined limp heavy permanent. was
Proceeding along hypothet- following line, this question propounded ical Nixon: was to Dr. appears injured “Well, now, it that was Doctor, nn
April. . . . 24, assume, that in- since this developed limps jury heavy walking; limp he has a TERM, 1920. Vol.
Mahany v. K. C. whether you, . . Doctor, . I to tell ask might, your opinion I have described not in the conditions your by the opinion, could or have been caused would injuries question was This mentioned*?” collision objected ground province to on that invaded the it conjectural, jury, speculative, The ob- etc. jection thus overruled, made was witness answered: might follow possible a condition such
“It injury.” objection, proper followed the over opinion, asking in his if, Nixon inquiry Dr. above permanent. might limp answered: heavy Witness this permanent.” possible “It objection, permitted proper over Mather, Dr. probably opinion, limp testify', will in his describing Again, *16 permanent. counsel, your alleged opinion Dr. Mather: “What ailments, asked indicate in reference to his does that nerves sj^stem, nervous Doctor1?” objection question, proper made
A this to permitted overruled, and the witness to answer: “It strain, is due to strain the accident, nerve undoubtedly. I that ask the answer be stricken out “Me. Sablee: for the same reason. “The Court: Motion to strike will out be denied. says (Italics ours.) lie that is what caused it.” illegal poison After this evidence had carried its jury, respondent the italicised counsel for asked have the above portion out, stricken the court “All said, ’’ right. question following propounded to Dr. Twyman, objection over the of defendants: injury
“Q. if And since this he has had trouble right hip with that this limp time has heavy you that observe when he walks, and it has been more years than two injury, since this your opinion what is , , , the permanency of that condition1? n SUPREME OP MISSOURI. COURT v. K. G.
“A.
is
Assuming tiiat
anatomical
chang-
due to
es
of course —I
I,
say,
would
just'
faith
assuming
good
is
party
not
if
putting
he has to
on,
limp
do that,
will
probably
always have to
that.”
do
The admission
of the foregoing
testimony,
as well
-
as several other matters
contained
in the
of a
record
similar character, was not
prejudicial
only
rights
to the
of defendants,
but in all probability was largely respon
sible for the excessive verdict
is
case.
well-
law
established
in this State that expert
testimony
admissible within reasonable
bounds,
testimony
but
of the expert
not
should
invade the province
the jury,
nor substitute
opinion
for that of the
jury upon
ultimate
facts to be decided in the case.
Su
[Deiner
termeister,
Mo. l. c. 521 and following; De Maet v.
Storage Co.,
l. c. 577; Railroad, Taylor Mo. l. c. 364; v. Railroad, 18-5 Mo. l. c. expert 256.] witnesses aforesaid were not only permitted to express opin their conjectural ions as speculative matters testified plaintiff, but were likewise permitted, in violation of the law as announced in the cases, above to invade province as to the ultimate facts to be in the determined case. an
(a) expert may While express opinion as to whether or an injury permanent, his answer, judicial order to stand test of criticism, must show result which he has indicated, will follow to *17 certainty. a reasonable of degree In other words, his if opinion upon based incompetent, possibility a mere may occur in what the future. as to [Campbell Ry. v. 177-8; l. c. Co., Railroad, Mo. McGee v. 175 214 l. v. Rys. c. United 221 l. 543; McCreery 27-8; Co., c. Rys. 211 W. l. c. Blythe Co., v. United S. v. 696; Battles l. c. 11 Rys. App. 619; 178 Mo. Co., Ruling Law, Case 582; Encyc. Evidence, p. sec. v. pp. 665-6; Strohm Y. v. N. Ry. McClain N. l. Y. Ry. Co., 177 N. Y. 467-8; Briggs c. Selleck Janesville, 104 Wis. l. c. 574.] Yol. TERM, Railway^ C.K. opinions given by T3iemain Doctor Nixon in answer hypothetical questions by propounded to the himto plaintiff, possibility, are based on mere as heretofore jury, shown. This evidence went to the over the ob- jections of defendants, under the sanction of court, proper fixing* to be considered in the amount compensation to be recovered. admission prejudicial same was to defendants and should have been excluded. Appellants
XI. strenuously insist that the dam- ages by jury grossly assessed are excessive granted a new should be on account of ri al. same. The verdict in $30,000. this case was for Excessive verdict:Unfair It was obtained under the circumstances here stated.
tofore alleged any operation petition It is not in the performed upon plaintiff injuries on account his yet, throughout plaintiff, and, the trial, the counsel repeated protest and one of over doctors, got improperly jury defendants, before the fact plaintiff’s opera- one testicles was an removed -evidently impression tion, created .the jurors ought compensated minds of the that he to be in chief therefor. testified: Why yon limp, heavy “Q. do have Mr. Ma- hany? hip. through A. Well, from this These leaders (indicating) operated here this side I where on” etc. objection being operation, plain- an
On made kindly might counsel consented that tiff’s excluded. hypothetical question In his Dr. Nixon, heretofore mentioned, counsel told doctor as- (plaintiff) sume “that testicle which the one now enlarged,” thereby again calling etc., has the atten- tion the fact that one of tes- operation. ticles been said had removed Counsel for question framing hypothetical submitted to Dr. Mather, said: *18 SUPREME COURT OE MISSOURI. Railways' appears here the evidence
“’Doctor, enlarged” the one which this man now has is testicle by plaintiff’s for Dr. counsel etc. Mather was asked respondent’s system opinion an nervous as follows: answered was shattered course, condition,
“His nervous possibly injured following due to accident, objected to, also of the This was removal testicle.” consider same. not to directed foregoing, that It is from the manifest, testicles, was de- operation, of his the loss of one illegal purpose liberately injected into the case for damages calcu- augmenting well herein. from the have doubt we lated to effect, have ad- have succeeded aforesaid must of the verdict size mirably. verdict ordinary where the
Under circumstances require may and af- remitittur a excessive, the court have case, we reached in this but, balance, firm it as awarded been have not the conclusion that defendants impartial Constitution under the trial fair and our State. laws extending here- further, we discussion
"Without White, new trial. the cause reverse and remand sitting. Modey, G., concurs; G., opinion foregoing PER CURIAM: The Railey, All opinion court. hereby adopted of the C., judges concur.