EMMA E. MAYNE v. KANSAS CITY RAILWAYS COMPANY, Appellant.
SUPREME COURT OF MISSOURI, Division Two
April 7, 1921
287 Mo. 235
OCTOBER TERM, 1920
2. ————— : ————— : ————— : Injury to Pelvic Cavity: Impaired Functions: Child Birth. Where the petition alleges that the bones surrounding the pelvic cavity were broken and crushed, and the organs within the cavity were crushed, and after describing the broken condition of the bones and the dislocation and rupture of the ligaments alleges that “the functions of all of which organs have been seriously and permanently impaired,” it contains an allegation of an injury in such general terms as to authorize proof of plaintiff‘s inability to give birth to a child, since one of the functions of the organs so impaired was child-bearing, and inability to bear children is a necessary result of a permanent impairment of those organs.
3. DEPOSITION: Absence from State: How Proven. The facts which will authorize the reading of a deposition may be established by the testimony of deponent or the certificate of the officer taking the same, or if deponent is gone out of the State, by additional proof that his present duty kept him in another State.
4. ————— : ————— : In Military Service. The deposition of a citizen of this State who deposed that at the time it was taken he was in the military service of the U. S. Army and stationed in another State, had been for six months and had not been discharged, and knew not when he would be able to return to his home in this
5. ————— : ————— : Present at Place of Trial. After a deposition of a witness was admitted in evidence on the ground that he was absent from the State, it was discovered that he was at the place of trial, and he was then sworn for the purpose of allowing the opposite party to cross-examine him, and such offer was declined. Held, that there is no reversible error in allowing the deposition to stand, because said opposite party was not harmed by it.
6. ARGUMENT TO JURY: Comment on Evidence. Where evidence to show plaintiff‘s physical condition in a certain particular is competent under the pleadings, comment upon such condition in the argument of her attorney to the jury is not improper.
7. ————— : ————— : Mental Suffering. Mental suffering as an incident to personal physical injury is always an element of damage to be considered by the jury, and it is unnecessary to make specific proof of mental suffering, because it necessarily arises when the nature and extent of the physical injury is shown; and where such injury is shown, it is not error for plaintiff‘s counsel, in his argument to the jury, to comment on her mental suffering.
8. NEGLIGENCE: Res Ipsa Loquitur: Passenger. In determining whether the doctrine of res ipsa loquitur applies to a case, it does not matter whether the injured party was a passenger on defendant‘s street car which injured her.
9. ————— : ————— : When Applicable: Case for Plaintiff. When the instrumentality which causes an injury is within the control of and operated by defendant, and moves or is operated in such a way that such motion or operation would not have happened except for some defect or negligent act, and injury results, the doctrine of res ipsa loquitur applies, and a plaintiff suing for an injury so caused has only to show control of the instrumentality by the defendant and its usual movements. It is then for defendant to explain, if it can, the casualty, so as to exclude negligence on its part.
10. ————— : ————— : ————— : ————— : Erratic Street Car. As a street car was being backed, the hind wheels went as they were intended to go and the front wheels veered off by reason of a split switch and caused the front end of the car to swing around and strike plaintiff standing on a sidewalk, the movement being one that
11. EXCESSIVE VERDICT: $20,000. Where plaintiff‘s injuries were unusual in severity and painfulness, rendering her a cripple for life and incapable of normal activities and life‘s most fruitful enjoyments, a verdict for $20,000 is not excessive.
Appeal from Jackson Circuit Court.—Hon. Willard P. Hall, Judge.
AFFIRMED.
L. T. Dryden for appellant.
(1) The court erred in admitting evidence to the effect that one of the results to the respondent from the injuries alleged to have been received by her, was a lack of the regular courses of nature in her female organs. Hall v. Coal Co., 260 Mo. 351; Johnson v. Railroad, 192 Mo. App. 8; Shafer v. Harvey and Dunham, 192 Mo. App. 502; Martin v. Kansas City Rys. Co., 204 S. W. 589; Wesner v. Railroad, 177 Mo. App. 117; Glasgow v. Railroad, 191 Mo. 347; Smart v. Kansas City, 208 Mo. 162; Taylor v. Railroad, 185 Mo. 239; Baldwin v. Kansas City Rys. Co., 218 S. W. 955. (2) The court erred in admitting evidence as to the probable ability of the respondent to give birth to a child. Authorities cited above; Western Union Tel. Co. v. Cooper, 10 Am. St. 772; Pittsburgh Railroad Co. v. Story, 63 Ill. App. 239; Atchison Railroad Co. v. Chance, 57 Kan. 40; Railroad Co. v. Douglass, 69 Tex. 694; Augusta Railroad Co. v. Randall, 85 Ga. 297. (3) This case should be reversed because of highly improper argument of respondent‘s counsel in his closing
E. C. Hamilton for respondent.
(1) Appellant cannot be heard to complain of testimony showing impairment of the functions of childbearing or of a lack of the regular course of nature in her female organs. (a) Because the petition alleges injury to the female organs and resulting impairment of function. Perrigo v. St. Louis, 185 Mo. 289; Brake v. Kansas City, 100 Mo. App. 611; McRay v. Met. St. Ry. Co., 125 Mo. App. 570; Patridge v. Boston Ry Co., 184 Fed. 211; Doster v. Ry. Co., 158 S. W. 441. (b) Because the evidence conclusively shows, and because it is a matter of common knowledge, that the chief functions of the organs within the pelvis injured and impaired in this case are essentially those of procreation with the accompanying process of menstruation. (c) Because appellant failed to avail itself in the trial court of the provision of
WHITE, C.— The appeal is from a judgment for $20,000 recovered by the plaintiff as damages on account of personal injuries.
Lexington Street, Independence, runs east and west. It is intersected by Orange Street running north and south. The defendant‘s street railway tracks run along Lexington Street; a track comes in from the north on Orange Street, and turns into a track on Lexington Street. After turning from Orange into Lexington Street, a car stands to receive passengers in front of the post office, which is on the north side of Lexington Street.
On December 24, 1917, a car of the defendant came from the north on Orange Street and turned the curve into Lexington Street, heading towards the west. A number of persons, including the plaintiff and her sister, were waiting at that point in front of the post office to take passage on a car going west. Some of those persons immediately boarded the car. It was then announced by the conductor in charge that the car would not go on west. Such passengers as had boarded the car got off. The switch connecting the track coming in from Orange Street with the Lexington Street track was thrown, and the motorman attempted to back the car eastward on the track on Lexington Street. The rear
The number of persons at the point waiting to board the car was variously estimated at from a dozen to thirty. A number of them testified, and all substantially to the same effect, as to the movement of the car in taking the split switch, the swinging around of the front, and the crashing into the throng of people. Among the witnesses was the motorman in charge of the car, whose testimony was offered by the plaintiff. The defendant offered evidence to show that the wheels of the car and other parts were in good condition. The evidence tended to show that the split switch might have been caused by various means, by a defective wheel, broken flange, obstruction in the track, or too rapid backing of the car.
The injuries of the plaintiff were of the most serious character. Her hip was torn from the socket; the bones in the region of the hip were fractured in five or six places. The technical names of those various bones were given and the condition explained by surgeons who at-
I. The appellant asserts that the trial court erred in allowing the plaintiff to prove her inability, after the accident, to give birth to a child. The allegations of the petition relating to the nature of the injuries received are as follows: “The
It is argued that these allegations were not sufficient to allow the introduction of such evidence, because there is no specific mention of that particular impairment in the injured organs. The case of Hall v. Coal Co., 260 Mo. 351, is cited by appellant in support of the position, where it is held that when the petition alleges special damages in a personal injury case, the proof must be limited to the special damages pleaded; that where a specific result necessarily follows from a stated injury it is not necessary to plead it, but where it is the natural but not the necessary result of the injury it would have to be pleaded in order to admit evidence of it. As an illustration used in the Hall Case, l. c. 373, an injury to the lungs might result in pneumonia, but not necessarily so, and such result would have to be pleaded before it could be proved.
Some uncertainty appears in some of the cases in the use of the expressions “general damages” and “special damages.” This arises from confusing the facts constituting a specific injury with the resultant damages which flow from it. If an allegation of dam-
The opinion then goes on to point out that in the petition in that case the defendant could not help the situation “by filing a motion to make more specific, because the petition contains no general terms which would by being made more specific uncover the hidden secret that impotency resulted from the injury.”
Applying that principal to this case, to simply allege that the bones surrounding the pelvic cavity were broken and crushed, and the organs within the cavity crushed, is a description of the facts constituting the injury; it would not necessarily follow from that statement of the injury that the woman would thereafter be unable to give birth to a child; but the allegation instead of stopping with the description of the injury goes on to state the results in general terms; the allegation, after describing the broken condition of the bones and the dislocation and rupture of the ligaments, then alleges: “the functions of all of which organs have been seriously and permanently impaired.” One of the functions of these organs so impaired was child-bearing. If the defendant desired a more specific definition of the particular impairment meant, a motion to make more specific was available. Or, if after describing the nature of the injury and the impairment of the organs the plaintiff had gone on and specifically had enumerated the particulars in which the organs were impaired, she
The case of Hibbler v. Kansas City Railways Co., 237 S. W. 1014, decided at this term of court, differs from the case under consideration in that very particular. In that case there was an allegation of the impairment of functions of certain organs; it was held improper to show a destruction of such organs, making it necessary to have them removed by operation, because destruction is not embraced within the general term impairment. The evidence was not improper and comes within the general allegations of resultant injuries.
II. Error is assigned to the admission of the deposition of witness Hugh Miller. The deposition was offered by the plaintiff and read in evidence. Miller testified that his home was with his parents in Independence, but at the time his deposition was taken he was in the military service in the U. S. Army and stationed at Camp Funston; had been there for six months and had not been discharged. He didn‘t know when he would be able to come back to Independence. The date of the deposition is not stated so as to determine how long it was taken before it was offered in evidence. The plaintiff‘s attorney, Mr. Hamilton, was sworn and testified that he had had correspondence with the witness at Camp Funston and he was willing that the counsel on the other side should see the correspondence. On that showing the deposition was read in evidence over the objection of the defendant.
The statute,
The facts which would authorize the reading of the deposition may be established by the testimony of the deposing witness or the certificate of the officer taking the same. It was held by this court in the early case of Gaul v. Wenger, 19 Mo. 541, that the mere statement of the witness in his deposition that he was going to leave for Europe tomorrow would not be conclusive so as to authorize his deposition to be read, in the absence of other proof, but that slight evidence might be offered to show that the witness had carried out his purpose so as to make the deposition competent. [See, also, Moudy v. Dressed Beef and Provision Co., 149 Mo. App. 413, l. c. 422.] In this case the witness not only said he was going away, but that he was stationed away. There was additional positive proof that his present residence and duty kept him in another State, at Camp Funston. If he should return to Independence it would be because of a leave of absence. We think the evidence justified the court in admitting the deposition.
However, another complication arose; after the deposition was read it was discovered that the witness was in Independence at the time. Mr. Hamilton, attorney for the plaintiff, was sworn and stated that he was misled as to the whereabouts of the witness, didn‘t know he was in the city, and he was ready to withdraw the deposition and allow the witness to testify. Mr. Dryden, counsel for defendant, declined to make any statement. The witness then was sworn and it was suggested by the plaintiff‘s counsel that the defendant‘s counsel cross-examine him. Defendant‘s counsel declined to cross-examine him unless he was examined in chief. Thereupon the plaintiff‘s counsel had him testify giving his name, and upon objection by defendant‘s attorney examined him no further. Defendant‘s counsel declined to cross-examine him.
From the fact that the deposition was competent when offered, the question arises as to whether it would
III. Error is assigned to the action of the trial court in permitting—over the objection of defendant‘s counsel—plaintiff‘s counsel in his argument to the jury, to comment upon the inability of the plaintiff to bear children, and her mental suffering on account of such condition. The comment upon the fact was not improper since the evidence of that condition was properly admitted, as shown above. The objection to the argument was that it made reference to a matter, mental suffering, without the issues. Mental suffering as an incident to personal physical injury is always an element of damage to be considered by a jury, and it is unnecessary to make specific proof of mental suffering because it necessarily arises when the nature and extent of the physical injury is shown. [Brown v. Hannibal & St. Joe Ry. Co., 99 Mo. 310, l. c. 319; Wingate v. Bunton, 193 Mo. App. 470; Maguire v. St. Louis Transit Co., 103 Mo. App. 459.] The comment was entirely within the scope of the issues and the evidence.
IV. The appellant complains of error in the giving of instruction P-1, on behalf of the plaintiff. This was the principal instruction given for plaintiff, and required the jury to find: “That if the plaintiff, Emma E. Mayne, had gone to said place intending to board one of defendant‘s street cars, and to become a passenger thereon, and if she was ready, able and
“Then you are instructed that such an occurrence creates a presumption of negligence for which defendant is liable, and the burden is upon the defendant to disprove such presumption by a preponderance of the evidence.”
It is claimed by appellant that this is not a res ipsa loquitur case, and that the instruction is erroneous in declaring the plaintiff‘s case is made out by showing the injury took place by the movement of the car, without showing specific negligence. It is further urged that the instruction is faulty, because it assumes that the plaintiff was a passenger.
As to the last objection, the instruction only requires the jury to find that plaintiff went to the usual place for receiving passengers intending to become a passenger. It neither assumes that fact nor requires it to be found; nor does it matter whether the plaintiff was a passenger or not in determining whether the doctrine of res ipsa loquitur would apply.
Where the instrumentality which causes and injury is within the control of and operated by a party, and moves or operates in such a way that such motion or operation would not have happened except for some defect or negligent act, and injury to some person results, then the doctrine of res ipsa loquitur applies, and a plaintiff suing for an injury so caused has only to show control of the instrumentality by the defendant and its usual movements. It is then for the defendant to explain, if it can, the casualty, so as to exclude negligence on its part. [Ash v. Woodward Printing Co., 199 S. W. 1. c. 997; Blanton v. Dold, 109 Mo. 1. c. 75; Thompson v. Railroad, 243 Mo. 336, l. c. 354; Gibler v. Railroad, 148 Mo. App. 475, l. c. 484.]
Here the street car took a most unexpected course, the back wheels going as they were intended to go and the front wheels veering off by reason of the split switch and causing an unusual and dangerous movement of the car. This was a movement that could not have happened except for some defect in the track or car, or some negligence in its management. The machinery and all appliances were peculiarly within the knowledge of the defendant and the defendant was charged with the burden of explaining. Defendant introduced several witnesses for the purpose of showing that the track, the car, and the wheels were in good condition, but offered no evidence to show exactly what caused the split switch and the consequent erratic movement of the car. Therefore the instruction if technically incorrect was harmless.
V. Complaint is made that the verdict is excessive. The injuries were unusual in severity and painfulness, rendering the plaintiff a cripple and more or less incapable of normal activities and enjoyment for life. This court has in recent cases allowed verdicts for persons injured to stand for amounts larger than the amount recovered here where the injuries were no more aggravated than these. [Smith v. Kansas City So. Ry. Co., 279 Mo. 173.]
The judgment is affirmed. Railey and Mozley, CC., concur.
PER CURIAM:—The foregoing opinion by WHITE, C., is adopted as the opinion of the court. All of the judges concur.