147 Mo. App. 386 | Mo. Ct. App. | 1910
(after stating the facts).-Errors assigned are that the court erred in admitting incompetent evidence on behalf of plaintiff; in excluding competent evidence offered by defendant; in giving the instructions for plaintiff and in refusing instruction No. 11 and the demurrer to the evidence asked by defendant, and that the verdict is excessive, the result of bias and prejudice.
There was no error in the instructions given for plaintiff.
The platform on which plaintiff fell was used by the defendant at Terry; defendant invited passengers to board or alight from its cars by means of this platform ; it was required to keep it in good condition. Defendant knew or should have known of its condition, and is responsible for whatever accident happened to persons boarding or alighting from its train by reason of the defect in the platform. Nor was it error to overrule the demurrer to the evidence of plaintiff. The case was for the jury under proper instructions. We would have no hesitation in holding the appellant company responsible for any injuries received by plaintiff, and do not think that the verdict was excessive, provided we could be satisfied that the jury were warranted by the evidence in the case, in finding that the fracture of the bone and consequent shortening of the right limb' by some two and a half inches, occurred by reason of plaintiff falling into the hole in the platform. The accident occurred on the 28th day of December, 1907. Twenty-one days thereafter plaintiff filed her petition in the circuit court of Pemiscot county. We have set out the material allegations in our statement. It will be noticed that the original petition avers that the injuries resulting from the accident were “a bad bruise and slight abrasion of the outer upper
During the period plaintiff was confined to her house or bed, about three weeks, she was attended by three physicians, whom she named. None of them were present or produced or examined at the trial. A couple of months before the trial, which was had in September, 1908, and at the instance of the defendant, the court appointed three surgeons to examine plaintiff, who conjointly examined her then, and subsequently, and a day or so prior to the trial, again examined her. These three surgeons testified unqualifiedly that if the femur hone or upper hone of the right leg was broken it would have been physically impossible for the plaintiff to have walked as she told them she had walked and moved about, and, basing their answers on facts embraced in hypothetical questions which covered the facts of her movements on the day of the accident, as testified to by all the witnesses, and on what she had herself told them, impossible for her to have walked, if she had broken the femur at the time stated. On hypothetical questions propounded to these three surgeons by counsel for plaintiff, they stated that there might have been a partial fracture at the time of the accident, and if that was a fact it might have been possible for this plaintiff to have done what she and all the witnesses testified that she had done immediately after the accident. But each of the surgeons who answered these hypothetical questions put by plaintiff’s counsel, testified that no such case of partial fracture as supposed had ever come under his observation, and that he had never heard of one, that is,
To meet the testimony of the surgeons, defendant asked an instruction which is numbered 11, and which we have given in full, it being to the effect that if the jury believe the statements of plaintiff about what she did after she received the injury to her leg, yet if they found that such statements were contrary to physical facts as those facts are in evidence, the jury should disregard her statements.
In the case of Hook v. Missouri Pac. Ry. Co., 162 Mo. 569, 1. c. 580, 63 S. W. 360, it is said that a court will treat as unsaid by a witness that which in the very nature of things could not be said.
In the case of Phippin v. Missouri Pac. Ry. Co., 196 Mo. 321, 1. c. 343, 93 S. W. 410, referring to many cases in which it had been held that where the established physical facts and common observation and experience conflict with the testimony of a witness, his testimony must yield and cannot be accepted as the basis of a verdict or judgment, the court says that these cases announce the law of this State so fully as to leave the question no longer open to debate or any doubt.
To the same effect are the decisions in Champagne v. Hamey, 189 Mo. 709, 88 S. W. 92; Oglesby v. Missouri Pac. R. Co., 177 Mo. 272, 76 S. W. 623; Weltmer v. Bishop, 171 Mo. 110, 1. c. 116, 71 S. W. 167; Zalotuchin v. Metropolitan St. R. Co., 127 Mo. App. 577, 1. c. 584, 106 S. W. 548; Demaet v. Fidelity Storage & Packing Co., 121 Mo. App. 92, 1. c. 104, 96 S. W. 1045; Stafford v. Adams, 113 Mo. App. 717, 1. c. 721, 88 S. W. 1130; Reed v. Chicago & S. R. Co., 112 Mo. App. 575, l. c. 581, 87 S. W. 65; Spiro v. St. Louis
We are confirmed in our view that this verdict should not stand by the failure of the plaintiff to produce witnesses and offer testimony which must have
In Reyburn v. Missouri Pac. R. Co., 187 Mo. 565, 1. c. 575, 86 S. W. 174, the failure of the railroad to produce as witnesses persons in its employ who were presumed to have-knowledge of the accident was held to be a strong circumstance against the defendant. That rule, in this ease, applies especially to the absence of the testimony of this young man Age. As against the failure to produce the physicians, otir Supreme Court in Evans v. Trenton, 112 Mo. 390, l. c. 404, 20 S. W. 614, distinctly held that the failure of plaintiff to call the attendant physicians as witnesses in• her behalf, “was a strong circumstance that they would not corroborate her testimony in regard to the extent of her
In 1 Starkie on Evidence, #p. 54, the general rule is stated to be that “the conduct of a party in omitting to produce that evidence, in elucidation of the subject-matter in dispute, which is within his power, and which rests peculiarly within his own knowledge, frequently affords occasion for presumptions against him; since it raises a strong suspicion that such evidence if adduced would operate to his prejudice.” So the rule is stated in 11 Am. and Eng. Ency. of Law (2 Ed.), p. 503, par. (2), and in the latter work it is stated, vol. 22, p. 1261 (c), that this rule has been applied where plaintiff, in an action for personal injuries, failed to call the physician who examined her shortly after the accident to testify as to the extent of her injuries. The authorities cited in support of this last are Cooley v. Faltz, 85 Mich. 47, and Vergin v. City of Saginaw, 125 Mich. 449. The Michigan statute covering the matter of testimony by a physician is practically identical with that of our own State. In the Cooley case it is said that the failure of the plaintiff to produce the physician who had attended her and who had examined and prescribed for her was a legitimate fact for the jury in determining the merits of the case. The same rule was applied in Ohio in the case of Katisfiasz v. Railway Co., 24 Ohio C. C. Rep. 127. It is announced as the law of the State in New York, in the case of Gordon v. The People, 33 N. Y. 501, and People v. Hovey, 92 N. Y. 554, as well as in Wennerstrom v. Kelly, 27 N. Y. Supp. 326.