164 Mo. App. 34 | Mo. Ct. App. | 1912
This is an action for personal injury alleged to have been received by plaintiff’s intestate, Miss Tanner, while a passeger on one of defendant’s trains. The judgment in the trial court was for the plaintiff. After the rendition of the judgment Miss Tanner died and the action was revived in plaintiff’s name, though for convenience we will designate her as the plaintiff.
It appears that she was a physician and traveled around to several towns in Kansas in the practice of her profession. That while on one of defendant’s trains, the car in which she and six men passengers were sitting, became derailed and ran for a short distance on the ties, when it was partly tipped to one side and stopped. Plaintiff testified that she was thrown against the arm of the seat, or seats, in such way as to sprain, or break, bones in her wrist, and that she struck the extreme end of her spine and the lower part of her abdomen against the arms of the seats with such violence as to cause such serious and painful injuries as to bring on permanent bodily disorders and nervous derangements, resulting in great change in appearance and in partial physical as well as mental disability
No special negligence was proved, the plaintiff insisting that it need not be, since the charge was general; while defendant contends it was special and not being proved, its demurrer to the evidence should have been sustained. The charge set out in the petition is that- “The defendant carelessly and negligently operated said train in such manner that the train of cars left the track.” If this was a general charge, then
A lengthy hypothesis was stated to a physician, who was put upon the stand by defendant as an expert. It concluded with this question:
“Q. Doctor, state whether or not, in your opinion, there might, could or would have been any connection between the blows that she received upon her body as I have described them to you, and the pain that she suffered at the base of the brain and along the spinal column and at the tail of the spinal column, the sleeplessness of nights, the nervousness; the question is whether or not there would be any connection, might could or would be any connection between those things? A. Yes, sir.”
The objection made in this court is to the word “would” in the question; it being claimed that that word called for a conclusion of fact from the witness, the determination of which should have been left to the jury. An examination of the record shows several questions were put before the word “would” was used, and objections were made, and that finally when that word was introduced as shown in the question quoted, an objection was made but it did not include the use of that word. So the trial court’s attention was not called to that phase of the- objection and it is really put forward in this court for the first time, and for that reason alone should be overruled.
But, aside from this, the form of question including the word “would,” was stated with approval in Taylor v. Railroad, 185 Mo. 239, and that part of the
What we have said practically covers other objections, including the matter of continuance, in which we discover no ground for complaint.
Nor do we feel it would he proper to pronounce the verdict of $5000 as excessive. If the evidence in plaintiff’s behalf is true, and we must so regard it, the serious and permanent injury so affected her body and mind as to practically destroy any pleasure in life.
Discovering no error justifying a reversal, we affirm the judgment.