Monroe v. United Railways Co.

154 Mo. App. 39 | Mo. Ct. App. | 1910

REYNOLDS, P. J.

(after stating- the facts).-Counsel for appellant assign eleven errors. The first, second, third, fourth and eleventh are to alleged, errors in the several instructions given at the instance of plaintiff. The fifth, sixth, seventh and ninth errors are assigned to the admission of the testimony of the two physicians. The eighth is in permitting plaintiff’s husband to testify that plaintiff had sent him to the physician for medicine and that he had procured medicine from the physician on prescriptions which he gave plaintiff. The tenth assigned error is in refusing defendant’s second, third, fourth and seventh instructions.

We are compelled to dispose of the errors assigned to the instructions given at the instance of the plaintiff on the authority of the decision of the Supreme Court of this state in the case of Sheets v. Insurance Co., 226 Mo. 613, 126 S. W. 413. We have, in a case passed on at this same term of court, that of Stevens v. Knights of the Modern Maccabees, had occasion to refer to this decision and to hold, on the authority of it, that instructions cannot be noticed when objection was not made at the time they were asked to their being given. ' We must adhere to that rule as announced and settled by our Supreme Court in the Sheets Case.

In the case of Union Loan, Storage & Mercantile Co. v. Farbstein, 148 Mo. App. 216, 127 S. W. 656, treating of the point arising- over the bill of exceptions in that case, as to exceptions to instructions, we held that the matter of noting exceptions was primarily for the trial court,’ and that court having stated in the bill of exceptions itself that he had, following the rule of his court, allowed exceptions to be noted as having been made to the giving and refusing- of instructions, his action was conclusive on us. But this does not reach the case at bar. In that case the rule of court invoked applied to exceptions both to the giving and refusing of instructions after they had been given, as well as to exceptions to the. action of the court in passing on objections. The rule covering these was distinctly found, and acting on it, the trial court allowed exceptions to be incorporated in the bill of exceptions which he signed. In the case at bar there is no suggestion whatever found in the bill of exceptions before us, as abstracted, and under a like rule of the circuit court of the city of St. Louis in force as to objections to instructions, objections had been made. Although we held in the Farbstein Case, supra, that where there is a rule of that court whereby objections and exceptions are assumed to have been saved to the giving or refusal of instructions, and that acting on it, the trial court allowed exceptions to be noted, we are not holding that when objections or exceptions are not in the bill of exceptions, we will assume that there was either because of the rule. The rule justifies the trial judge in allowing objections or exceptions to be noted in the bill. "When they appear' in the bill before us, we notice them, not because of the rule but because the trial court had allowed them to appear in this bill. .Our Supreme Court has expressly denied the power of a, court, by rule or practice, to dispense with the necessity of objections to instructions or to evidence, and held that any such rule would not be recognized by an appellate court. [Green v. Terminal R. R. Assn., 211 Mo. 16, l. c. 34, 109 S. W. 716.] In that ease no exception appeared in the bill, but counsel invoked the rule of the trial court. The Supreme Court refused to recognize it. In the case at bar it is nowhere recited in the abstract of the bill of exceptions, that any objections were made, or understood to have been made to the instructions, prior to their being given. Hence the ruling in the Farbstein case is not applicable to the facts in the case at bar. That ruling is however applicable to another phase of this case as will be hereafter noted.

Touching the instructions given at the instance of the defendant, we agree with counsel that it is not to be understood that a defendant acquiesces in the theory of the case presented by plaintiff’s instruction by ashing countervailing instructions. [Clancy v. St. Louis Transit Co., 192 Mo. 615, 91 S. W. 509.] But even without any consideration of the instructions given at the instance of plaintiff, and without holding that defendant is precluded by its own instructions, from attaching the instructions given at the instance of plaintiff, and accepting defendant’s instructions, as it urges us, merely as countervailing the instructions of plaintiff, we hold that the instructions given at the instance of defendant presented the defense to the jury in the most favorable and forceful manner possible, short of a direction for a verdict for defendant. We are not to be considered as approving the instructions given for plaintiff — we merely treat them as given without objection, and hence not open to attach here. In point of fact we thinh the instructions given for and at the instance of defendant, entirely too favorable to defendant and as not in line with authority, as we shall notice later when passing on the refused instructions.

Proper exception has been saved to the refusal of the four instructions ashed by the defendant. We have set them out and are unable to concur with counsel in their contention that it was error to refuse them. Nor do we thinh that the decisions cited by them, namely, Jackson v. Grand Avenue Ry. Co., 118 Mo. 199, 24 S. W. 192; Murphy v. Metropolitan St. R. Co., 125 Mo. App. 269, 102 S. W. 64, support the contention of defendant’s counsel. The error of these refused instructions is that they leave out of view the proposition that notwithstanding the fact that the usual stopping place of this car may have- been on the north side of Olive street, yet if in point of fact it stopped south of there and plaintiff was led to believe that it was in obedience to her signal and to give her an opportunity to alight, it was negligence on the part of the defendant to allow the car to start while she was in the act of alighting, if that is a fact. In the case of Jackson v. Railroad, supra, Judge Gantt who delivered the opinion, refers to' and quotes the case of Railroad v. Mills, 105 Ill. 63, as holding that the car being stopped from whatever cause, at a place where passengers were in the habit of alighting, she had the undoubted right to alight without making any request, and if the defendant’s servants knew, or by the exercise of due care, would have known of it, it was negligence on their part to start the car before she had a reasonable time in which to alight. Judge Gantt says that with this rule our court fully agrees, but that in the case before him the evidence shows no such habit by the passengers as to put the servants in charge of this ear upon notice of their desire to get off at the place plaintiff was hurt. In the case at bar there was such evidence, given by several witnesses.

In Murphy v. Railroad, supra, the rule is stated to be that where a person in charge of a car has actual knowledge of the fact that passengers are alighting, his duty to them is the same, whether the stop is made at a regular stopping place, or at some other. In the case at bar there is the evidence of several witnesses, to the fact that the conductor in charge of this car had actual knowledge of the intention of the plaintiff to alight at the place where the car was stopped south of the crossing.

We are referred by counsel for the plaintiff to a later Illinois case than that cited and quoted with approval by Judge Gantt, namely West Chicago Street Railroad Co. v. Manning, 170 Ill. 417. It is there said that the court inclines to the view that whenever a street car is stopped at or near the crossing of streets, before the car is again put in • motion, the duty is cast upon those in charge of the car of exercising proper and reasonable care for the safety of passengers; that it is within common knowledge and observation that passengers enter and alight from street cars at or near the crossings of streets and that street cars stop at street intersections for the purpose of receiving and discharging passengers. The court holds that when a car is brought to a stop at or near such crossing, it is not unreasonable to charge the conductor or motorman in control of the car with notice that passengers may avail themselves of the opportunity thus presented for leaving the car and also with the duty of exercising a reasonable degree of care before putting the car again in motion, to see that passengers seeking ingress into or egress from the car are not in such position as to be endangered by putting the car again in motion. Examining this Illinois casé, .it appears that there was in force in the city of Chicago very much such an ordinance as the ordinance in evidence in this case. It was further held in the Illinois case that under the ordinance, the plaintiff should have remained in her seat until the car had crossed the intersection of the streets and stopped at the further walk, where it was required to stop' by the provisions of the ordinance requiring them to stop' after crossing the street. The court, however, held, construing this, that if a car approaching a street crossing comes to a stop at the nearest walk, passengers who have reached their destination may not unreasonably regard it as an invitation to alight; that the persons in charge of the car having brought it to a stop> cannot be permitted, because of the ordinance, to ignore the fact that passengers may be imperiled by putting the car again in motion without notice or warning. Many decisions of our Supreme and Appellate Courts are in line with, this ruling; among others see Millar v. St. Louis Transit Co., 215 Mo. 607, 114 S. W. 945; Murphy v. Railroad, supra, and Jones v. Traction Co., 137 Mo. App. 408, 118 S. W. 675. In the Millar case it is held that it is not only the duty of carriers of passengers, such as street cars, to carry the passengers safely but to give a reasonable time and opportunity to' alight from the car. It is in evidence in the case at bar that “the signal to stop had been given, and any movement of the car thereafter, and prior to the expiration of a reasonable time in which to alight in safety, was negligence,” says Judge Graves in the Millar case, adding that, “It was in violation of the implied contract to safely carry and discharge a passenger, which duty the law imposes upon a carrier. To safely discharge the passenger should be construed to mean a reasonable time and opportunity for the passenger to alight in safety.” In the Murphy case it is said by the learned judge who delivered the opinion, speaking for the Kansas City Court of Appeals, “that where a car is momentarily stopped at a place, not used as a regular station and for some purpose not connected with the action of passengers, no invitation to passengers to alight may be implied, and, if in such case, a passenger attempts to alight and is injured by the starting of the car, the carrier cannot be charged with negligence, unless the person in charge thereof knew that passengers intended to alight or had reason to suspect it.” Jones v. Traction Co., supra, is to the same general import. In the case at bar there was evidence that the conductor knew or had reason to know that plaintiff intended to alight. This fact, a fact in evidence, although contradicted, brings this case under the exception, and under the rule that where a person in charge of a car has actual knowledge of the fact that passengers are alighting, his duty to them is the same whether the stop is made at a regular stopping place or at some other. Employees in charge of a car stopped at a point near a street crossing where passengers customarily get off, although that point is not a regular stopping place, must exercise due care before again starting the car, to see that passengers getting on or off will not be endangered by putting the car in motion. Having knowledge of the custom referred to, the operatives. of the car must exercise care accordingly, when they knew, or might have known, that the passenger is in the act of alighting. Nor does the fact that the ordinance provides that street cars, stopping at street intersections, shall stop at the further cross-walk, relieve those in charge of the car which has been stopped at the nearer cross-walk, where, in accord with such custom, passengers are known to get off and on, from exercising care to see that persons intending to get on or off will not be endangered by starting the car. When the car stops at such a street crossing, as if in obedience to a signal, the passenger may reasonably consider the act of stopping as an invitation to alight and may reasonably assume that the operatives of the car will conduct themselves accordingly.. The conductor of this car, in the case at bar, was standing on the rear platform at the very time plaintiff was there after the car stopped as if in response to her signal, and it was obvious to him that she intended to alight. It was his duty, under the circumstances, to have withheld any signal for the car to move forward until plaintiff was safe on the ground. The act of the conductor in failing to observe this duty, threw an element of liability upon this defendant. There was evidence in this case tending to show that the signal to stop had been given and, as held by the court in the Millar case, citing Grace v. St. Louis R. Co., 156 Mo. 295, l. c. 300, 56 S. W. 1121, any movement of the car thereafter and prior to the expiration of a reasonable time in which to alight in safety was negligence, was in violation of the implied contract to safely carry and discharge a passenger, which duty the law imposes upon the carrier. “To safely discharge the passenger,” says the court, “should be construed to mean a reasonable- time and opportunity for the passenger to alight in safety.” The facts in this case were disputed, but accepting the instructions given as correctly placing the law relative to those facts before the jury, as we must, there was ample testimony to warrant the jury, sole judges of the evidence under the law, and sole arbiters when the evidence is conflicting, as here, in arriving at the verdict reached by them -in this case.

In the brief which he has submitted tons in this case, the learned -counsel for the respondent requests us -to read carefully the testimony of the agent of the defendant who was employed in assembling witnesses for it, as appears at designated pages of the abstract, and he asks ns to draw therefrom such inferences as to us may seem reasonable and just, saying that “side lights sometimes show a picture to better advantage.” According to this request, we have read all the testimony of this witness and have set his testimony out in substance. He was an agent in the employ of defendant and testified to the measurements of the street. The accuracy of these measurements, their absolute truthfulness is in no manner whatever controverted. That is all that this witness testified to on his direct examination. His cross-examination which covers some ten pages of printed matter, is entirely upon matters that are utterly irrelevant. We see nothing whatever either in the conduct of this witness or in the facts he testified to on cross-examination, to discredit his testimony in the slightest degree. As the agent of the defendant, he had a perfect right to assemble the witnesses where they could be examined either by himself or by counsel as to their testimony to be given in any particular case. Counsel who neglect to do this of witnesses they propose to put on the stand, can hardly bn said to faithfully discharge their duty to their client. We see nothing whatever to condemn in the testimony of this witness. There is nothing to show any improper “coaching” of witnesses. We cannot approve, even by silence, the style of cross-examination and the line of cross-examination indulged in of this witness by counsel for the plaintiff. In point of fact, none of the matter in cross-examination should have been admitted and when the learned trial court asked the purpose of counsel in introducing it, counsel for plaintiff announced that it would appear later. If it does appear later, either of this witness or of any other witness, it is not preserved in the abstract. Nor can we pass over in silence, our attention having been called to it by opposing counsel, the statements in the brief of the counsel for the appellant, reflecting on the prior occupation and concerning the testimony of a bystander, an employee of a dental concern. Counsel say in their printed brief as to the testimony of the bystander witness, that evidently the jury did not believe a word of it. If that is true, we are not able to understand how defendant was injuriously affected by it. .Remarks derogatory to the two physicians, who testified for plaintiff, are found in the printed brief of counsel for defendant. We are bound to say, in justice to these gentlemen, witnesses under the protection of this court, no less than under that of the' trial court, that the criticism, and remarks 'made concerning them by counsel for defendant in théir statement and brief are entirely unwarranted by anything in the record in the case.

Covering the objection to the admission of the testimony of the physicians, we are unable to distinguish the point presented here from that urged and decided in McCaffery v. St. L. & M. R. Ry. Co., 192 Mo. 144, 90 S. W. 816. Comparison of the testimony in this case with that set out at pages 160 and 161 of the McCaffery ease, shows the application of the law there announced to the facts in the case at bar. There, as here, the question asked related in part to traumatic neurosis, or neurasthenia. Without endeavoring to-give the scientific definition of this disease, it is sufficient to say that it is within the petition, inasmuch as the petition charges injury to the nerves, and consequently the questions concerning it pertained to an injury stated in the petition. Practically the identical question that was asked of the physician in the MeCaffe-ry case was here asked of these physicians. That question was objected to unless based on the facts in evidence in the case and as incompetent and not predicated on any facts which the evidence tended to show and calling for a conclusion; the objection was overruled, defendant excepting. Our Supreme Court held the action of the lower court correct. These physicians were not testifying on a hypothetical case. They gave their opinion on conditions they observed. They had given those conditions in -evidence to the jury with sufficient particularity to enable a jury of non-experts to form its own conclusion. On the authority of the McCaffery case, which we think covers the point here involved, we hold there was no error in admitting the testimony of these physicians, experts, on the effect and probable consequences of the injuries.

We think the testimony of plaintiff’s husband was within the exception contained in section 6359, Eevised Statutes 1909'.

Counsel for respondent (plaintiff) objects to the entry in the bill of exceptions, of exceptions to various rulings of the court because exception, as he claims, was not made at the time. We have set out in our statement tlie ruling of the court as to these exceptions, the practice in that court clearly appearing, and we have nothing to add to what we have said above on this subject, and what we said when treating of instructions in the case of Union Loan, Storage & Mercantile Co. v. Farbstein, supra.

On a review of the whole case, in so far as it is open to us for review, we find no error to the prejudice of the defendant in the case, and the judgment of the circuit court is affirmed.

Nortoni, Jand Caulfield, J., concur.