DEE MORTON v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
Division One
September 13, 1929
20 S. W. (2d) 34
Complaint is made of plaintiff‘s Instruction 1. It is insisted that it is confusing and misleading because it is too long and unnecessarily submits numerous conceded facts. The instruction is lengthy, but we cannot say that it was misleading, or that the jury could not have understood it. The instruction cannot be held erroneous upon this ground. [Wolfe v. Payne, 294 Mo. 170; Henry v. Illinois Central Ry. Co., 282 S. W. 423, 424.]
The other objection to the instruction is based upon the contention that it is unsupported by any evidence and that a finding thereunder would be wholly upon conjecture. Under what we have heretofore said we overrule that contention also.
There is no contention that the verdict, which was for $9,000, is excessive, and the judgment is affirmed. Seddon and Ellison, CC., concur.
PER CURIAM:—The foregoing opinion by LINDSAY, C., is adopted as the opinion of the court. All of the judges concur.
The petition charges, in substance, that plaintiff was a passenger for hire upon defendant‘s railroad train, having taken passage thereon on September 13, 1924, from the town of Mansfield, Missouri, to the city of Memphis, Tennessee; that he was wrongfully, willfully and maliciously assaulted, maltreated and injured at the hands of one of defendant‘s servants and employees engaged in the operation of said train, whereby plaintiff received and suffered certain described injuries; that such act or assault was willfully, unlaw
The trial of the action resulted in a verdict of the jury, finding the issues for plaintiff and assessing his actual, or compensatory, damages in the sum of $5,000, and assessing punitive damages against defendant in the sum of $3,000. After an unsuccessful motion for a new trial, the defendant was granted an appeal to this court from the judgment entered upon the verdict.
The evidence of plaintiff shows that the defendant operated an excursion train from Springfield, Missouri, to Memphis, Tennessee, on the night of September 13, 1924. Plaintiff and his wife were passengers on said excursion train. They boarded the train at Mansfield, Missouri, at ten o‘clock on the evening of September 13, 1924, plaintiff purchasing two round-trip tickets from Mansfield to Memphis, and return, for the transportation of himself and his wife. One of defendant‘s employees engaged in the operation of said train was one Ed Gammon, who is designated in the record as a “special officer” of the defendant railway company. It is stipulated in the record that it was the duty of said Gammon, “as such officer and agent of the defendant, to maintain order on said train, to protect the property of the railway company from loss and injury, and to protect the passengers on such train from being molested, disturbed or injured by other passengers, or by persons who were not passengers thereon, while the said passengers were within the coaches of said train.”
Plaintiff and his wife, together with other passengers from Mansfield, took seats in one of the coaches of said train. Plaintiff testified that about dawn of the morning of September 14, 1924, he suddenly became ill and started to go to the toilet room of the coach in which he and his wife were seated. The toilet room was located in the front end, and on the left side, of the coach. Plaintiff testified that, as he reached the front end of the coach, he “must have fainted,” and that he had no recollection of reaching or entering the toilet, or of anything that occurred while he was in the front end of the coach; that the next thing he knew one Dr. Latimer, a physician, was in the toilet room with plaintiff, and that the physician assisted plaintiff into the smoking car of the train, which was the car immediately in front of the coach in which plaintiff had been seated. Those witnesses who saw plaintiff fall near the toilet room of the coach testified that he “just crumpled up;” that he seemed to be limp; and that he “kind of slumped down” in the aisle of the coach.
Mrs. Maggie Shinpaugh thus testified as to the occurrence: “When he (plaintiff) sank down, he was kind of behind the stove, I think, in the end of the coach next the engine. On the north side of that coach there was a toilet; he was on the opposite side of that; on the opposite side of the aisle; he was in that end of the car. He just kind of gave way, kind of slumped down. I don‘t think he fell hard; he just kind of gave way and sank to the floor. . . . I saw special agent Gammon there just after the man fell. He (Gammon) picked him up, kind of got in behind him and kind of held him up and walked him to the toilet door. . . . He (Gammon) held him up and opened the toilet door and took his knee and kind of pushed him (plaintiff) in.
“Q. Can you tell where he (Gammon) struck him (plaintiff) with his knee? A. I wouldn‘t say. Gammon did not go in with him. Gammon picked him up from the back and then Mr. Morton‘s back was to Gammon‘s chest, and he opened the door with one hand and held him up with the other and pushed him in with his knee; he turned him loose. Gammon shut the door and stood there then.”
Cross-examination: “Q. And he (Gammon) helped him to the toilet door? A. Yes, sir. Q. Opened the door and helped him in the toilet, didn‘t he? A. Yes, sir. Q. Mr. Morton acted like he was limp and a little hard to handle, didn‘t he? A. Yes, sir; he did. Q. You don‘t know whether Mr. Morton fell when he went into the toilet or not? A. No, sir. Q. There was nothing unusual that you saw there about Mr. Gammon‘s demeanor towards this man, was there? A. I couldn‘t say that there was. Q. Did he help him into the toilet? A. It looked that way. Q. The man looked very bad? A. Yes, sir; he did. Q. There was nothing unusual in Mr. Gammon‘s manner in the matter at all, was there? A. No, sir.”
George Dewhirst testified: “I saw Dee Morton along early in the morning while I was on that excursion train up in the front part of the coach; saw him go up there. He seemed to be trying to get a drink when he first got up there. The drinking fountain is right there by the toilet, on the north side of the coach. He just fumbled around there a little bit, then he seemed to be trying to hold to the wall; while he had his hands on the wall, he kind of crumpled down on the floor. . . . I saw him fall; he didn‘t fall hard. He did not get up. I saw Ed Gammon, the special agent of the Frisco there. He got Morton by the collar, or upper part of his clothes, and kind of picked him up half way, and helped him up
Cross-examination: “The man had hold of his clothes with one hand and pushed him into the toilet with his knee. Q. Now, just show the jury how he could get his knee up on Morton‘s back? A. I didn‘t say he had his knee in his back; in the lower end of his body. Q. You don‘t call it his back; you never saw him with his knee in this man‘s back, did you? A. I couldn‘t say that I did.”
Virgil Dewhirst testified: “Along early in the morning I saw Mr. Morton go towards the front of the car. When Mr. Morton went to the front of the car I suppose he was sick or something; anyway, he stood there and fell to the floor; as he fell he put his hands out, caught on the front of the car and slid down to the floor. Slid his hands down, and after that Ed Gammon came forward and took him sort of by the clothes or the back of his neck, raised him up with one hand and opened the toilet door, and Mr. Morton wasn‘t able to stand by himself; he was partly down then, and Gammon gave him a boost with his knee on the inside and shut the door. When Mr. Morton fell he sort of crumpled up; kind of squatted down, I mean; that is, he fell in a heap. He was up at the front of the car. When he fell he had his hands on the front of the car, and when he fell he held his hands out and kind of slid down. Ed Gammon, when I first saw him, was on the first or second seat on the opposite side of the car from where I was. When Mr. Morton fainted, he (Gammon) got up and went to where he was, picked him up by the back of the neck or clothing with one hand. Q. Show the jury where he (Gammon) hit him (plaintiff) with his knee, as near as you can. A. Well, just about the belt, somewhere in the back. I couldn‘t say which side it was on; I couldn‘t say with which knee he hit him; he opened the door as he had him in that position and hit him with his knee about the belt and shoved him into the toilet; he closed the door. I don‘t think Gammon went in the toilet. He turned him loose when he hit him with his knee. Q. How did he handle Mr. Morton? A. Well, rather rough. Q. When Mr. Morton was boosted into the toilet did he appear to be conscious or unconscious? A. Unconscious. Q. Was he limber? Yes, sir; he was limber. Q. You say he didn‘t walk over there; did he appear to be able to walk over there? A. No, sir.”
Clarence Shinpaugh testified: “I did not see Morton fall up in front, by the toilet; my wife called my attention to it. I looked around and some man had him up in his arms; I think he had him under both arms. Q. What did this man who had hold of him do with him? A. He just opened the toilet door and put him in the toilet. Q. How did he hold him when he opened the toilet door? A. He held him with one hand under his arm. Q. What position was Mr. Morton in when he (Gammon) put him in the toilet? A. Well, he looked like he was kind of limp. Q. Was he (plaintiff) standing upright? A. Not clear up. Q. Will you show the jury how far down he was when Gammon put him in the toilet? A. He put him in with his knee and hand; it looked that way; I don‘t know which knee he used, but he seemed to use his knee this way (indicating). Q. Could you tell where his knee hit him in the back? A. No, sir; I couldn‘t. Q. Could you tell about where it hit him? A. Well, I could not say for sure. Q. Morton had his back to Gammon? A. Yes, sir. Q. And he put him in the toilet with his knee, you say? A. Yes, sir. Gammon did not go in there with him; he closed the door after he put him in there. Q. How did Gammon handle him? A. Well, he handled him a little rough, it looked like. Q. Now, did you say anything to Gammon, or did he say anything to you? A. Yes, sir; I went up and asked him (Gammon) what was the matter with him. He told me that Mr. Morton was drunk. Q. What was Mr. Morton‘s condition when Gammon had hold of him and put him in the toilet? A. Well, he looked like he was sick or something; he was limp. I couldn‘t know whether he was conscious or unconscious; he was limp.”
Cross-examination: “Q. Show the jury about how he (Gammon) used his knee. A. Just about that way (indicating). Q. Now,
Mrs. Morton, the wife of plaintiff, testified: “Mr. Morton didn‘t get sick that I know of in the night. I didn‘t just see him go up in front; I know that he left me, just got up out of the seat. I had been asleep, just woke up; he got up and left me. I did not see him fall up in the front of the coach. Mrs. Shinpaugh, sitting up in front of me, called my attention to it. I rushed up there to assist him. Q. Who did you see when you got up there? A. I saw Mr. Ed Gammon there. He was the special agent of the Frisco railroad on the train that night. I rushed up there; I said, ‘What is going on here?’ He said, ‘What is it to you?’ I said, ‘This is my husband.’ He said, ‘Too much corn juice; too much corn juice; go back to your seat; I will take care of him.’ I just stood there for a minute thinking what I would do; and he said again, ‘Too much corn juice, I will take care of him.’ . . . I went for Dr. Latimer; he was two coaches ahead; I got Dr Latimer, and when I brought him back I told Gammon this was our home doctor, to let him in the toilet; and he just stood there with his hand on the door knob all the time; as I passed by him, he kind of frowned. Q. When you first went up there and had that first conversation with Gammon, judging from his appearance and the manner in which he spoke, what was his attitude of mind? A. Well, he was just mad; he was angry and his face was awfully red. Q. In what tone of voice did he speak to you when he did answer your questions? A. Well, he was just real angry, just wanted me to move out, not to stay there. Q. When you walked up there, first had this conversation with Gammon, did you see your husband? A. I did; I saw him in the toilet. The door was about half open; Gammon had his hand on the door knob; he was looking in, and I kind of rushed in, tried to get in, but couldn‘t get in for him (Gammon). Gammon wouldn‘t let me in. Q. Wouldn‘t let you into the toilet where your husband was? A. No, sir. Q. Tell the jury where your husband was; his position in the toilet. A. He was between the window and the stool in the toilet; he was just apparently getting up from the floor, all humped up, and he had hold of the window sill or the little rod there, a little rod under the window sill. Q. What was your husband‘s appearance when you saw him there? A. He was awful pale, very pale; just deathly sick, and big drops of sweat all over his face, just big ones.”
Dr. B. E. Latimer testified: “I was not in the coach when Mr. Morton fainted and was put into the toilet. Mrs. Morton came up after
The defendant adduced the testimony of several passengers, who were seated in the coach at the time, tending to show that Gammon did not assault the plaintiff, or handle him in a rough or violent manner, but that Gammon merely assisted plaintiff into the toilet after plaintiff had fallen in the aisle. Gammon testified: “When I saw him fall, I went to him and picked him up. He was lying kind of on his right side and face, and I went to him and just reached under his arms and lifted him up. I put each hand under his arms. I just reached over, got him under the arms and picked him up like that (indicating); held him there a few seconds; he said, ‘Help me to the toilet;’ I just turned him, just like this (indicating), still held my right arm around him, opened the door with my left hand, and he stepped into the toilet; I stood there, held the door a few minutes, and he had taken down his pants, and I pulled the door to, so he could get on the stool, and I shut the door. Q. Did you see him sit down on the stool? A. Sit down on the stool? Yes, sir. Q. Did you see him take down his trousers? A. Yes, sir. Q. Was he sitting on the stool when you pulled the door to? A. Yes, sir. Q. You may state to the jury whether or not you kicked him with your knee? A. No, sir. I did not. Q. You may state to the jury if you pushed him or threw him into this toilet? A. No, sir. Q. Did you use any force whatever in helping this man into the toilet other than you have told the jury? A. No, sir; I didn‘t. Q. Did you use your knee to get him into the toilet? A. No, sir; I didn‘t. Q. You may state, after you picked him up, how close you held him to your chest? A. Well, I held him right up against me. Q. While you were holding him, were you holding him in a position that you could have kicked him in the back with your knee? A. I don‘t think so. Q. What was
We find no evidence in the record tending to show that plaintiff was intoxicated, or that he had been drinking intoxicating liquors while a passenger upon the train, or before boarding the train. Both plaintiff and his wife testified that plaintiff had not partaken of any intoxicating liquor during the journey to Memphis on defendant‘s train. There was evidence to the effect that, several days before plaintiff started upon the journey to Memphis, he had suffered from a sore, or blood blister, upon one of his hands, that his wife had treated the sore, and that several red streaks extended upwards on the arm from such sore, indicating that plaintiff had suffered from
Plaintiff testified that, upon arriving in Memphis, he experienced considerable pain in the small of his back on the left side, and that he had difficulty in walking, requiring the assistance of his wife, and the aid of a cane, in getting about. Plaintiff and his wife left Memphis, on the return trip, on the night of September 14, 1924, arriving at Mansfield the next morning. Plaintiff testified that he immediately went to his home at Hartville, a few miles distant from Mansfield, where he went to bed and had his wife rub his back with liniment. Plaintiff‘s wife testified that, upon arriving home, she examined plaintiff‘s back and found a bruised place, black and blue in color, and about the size of a saucer, on the left side of plaintiff‘s back, and that she discovered several freshly-skinned places on plaintiff‘s elbows and shins; that the bruised place on plaintiff‘s back continued to show for eight or ten weeks thereafter. Plaintiff‘s wife was corroborated in her testimony by a young woman, a cousin of plaintiff‘s wife, who resided with the Mortons, and who testified that, a few days after plaintiff‘s return from Memphis, she saw a black and blue bruise, about the size of one‘s hand, on the left side of plaintiff‘s back. Plaintiff and his wife testified that plaintiff, at times, passed blood upon urinating, a symptom which plaintiff had not exhibited prior to the railroad journey in September, 1924.
Plaintiff was attended by several physicians, but did not call a physician until several weeks had elapsed after his return from the excursion trip. Dr. Latimer testified that, several weeks after the excursion trip, plaintiff called upon him and complained of his back hurting; and that Dr. Latimer gave plaintiff treatments for rheumatism and lumbago, but that plaintiff did not respond to such treatments. Dr. Latimer testified that he made no physical examination of plaintiff, and that he merely accepted plaintiff‘s statements as to the pain in his back, and from such statements, he diagnosed plaintiff‘s ailment as being rheumatism or lumbago. Another physician, Dr. Mott, testified that he examined plaintiff in November, 1924, and found a red and swollen place, about eight inches long and five or six inches wide, in the small, or lumbar region, of plaintiff‘s back, on the left side; that the discoloration lasted for some time, and that the place of the discoloration seemed to be tender upon pressure; and that such an inflamed condition as he found on plaintiff‘s back would ordinarily be caused by an injury, or by some direct force or violent blow upon the back. There was medical testimony offered on behalf of plaintiff tending to show that his ailment and physical condition is, or might be, attributable to a trauma, or a violent blow, upon the back. Defendant offered medical testimony to the effect that plaintiff‘s physical condition might be attributable to a septic in-
Plaintiff‘s evidence tends to show that, prior to his illness, plaintiff (who was forty-two years of age at the time of the alleged assault) had been engaged for several years in the business of hauling heavy freight by truck between Hartville and Mansfield; that he conducted such business without any help or assistance, himself driving the truck, and lifting and handling the heavy freight hauled thereon; that he had had no serious illness prior to September 14, 1924, the date of the railroad excursion trip, and had not theretofore suffered from rheumatism, or experienced any pain in his back or kidneys, or passed blood in the urine. Several witnesses testified that plaintiff was a strong, able-bodied man prior to the time of the excursion trip to Memphis in September, 1924. Plaintiff‘s evidence furthermore tends to show that, since said date, plaintiff has been unable to perform any manual labor; that he is unable to lift a bucket of water, or to lift his small children; that he has been unable to longer continue his business of hauling freight, because of his physical condition, and that he was obliged to sell and dispose of his truck business; that he suffers continuous pain; that he is unable to turn over in bed without holding to the head of the bed; and that he has lost in weight. Plaintiff‘s medical witnesses expressed the opinion that his injury is a permanent one.
I. The appellant assigns error in the refusal of the trial court to give, at the close of all the evidence, a peremptory instruction, in the nature of a demurrer to the evidence, directing a verdict for the defendant railway company. It is urged by appellant that plaintiff‘s cause of action is predicated solely and singly upon an alleged willful and intentional assault, committed upon the body and person of plaintiff by an agent and employee of defendant who was then engaged in the operation of the train upon which plaintiff was a passenger; that there is no substantial evidence that the act or conduct of defendant‘s, agent and employee, Gammon, was willful, intentional, or malicious; and that, if there be any substantial evidence whatsoever entitling plaintiff to a recovery against the defendant, plaintiff‘s cause of action, or right of recovery, is one for simple negligence only, arising out of the careless and negligent handling of plaintiff by defendant‘s agent and employee, Gammon, and not for a willful, intentional and malicious assault. In other words, it seems to be the contention of appellant that there is a fatal variance between the cause of action, or specific ground of recovery, alleged in the
A demurrer to the evidence admits as true every fact and circumstance which the evidence adduced by plaintiff tends to prove, and the plaintiff is entitled to the benefit of every inference of fact which may reasonably be drawn therefrom. [Stauffer v. Railway Co., 243 Mo. 305, 316.] In ruling upon a demurrer to the evidence, the appellate court must consider and view the evidence in the light most favorable to plaintiff. [Stauffer v. Railway Co., supra; Goucan v. Cement Co., 317 Mo. 919, 929.]
The evidence on behalf of plaintiff tends strongly to show that plaintiff became suddenly ill and proceeded to the toilet room in the forward end of the coach on which he was a passenger; while nearing the toilet room of the coach, plaintiff fainted, and “gave way,” or “crumpled up,” or “slumped down,” in the aisle; his body was “limp and limber,” and he appeared to be unconscious, or, at least, only semi-conscious; his appearance was that of a very sick man, large drops of perspiration standing out upon his face, and his face was very pale. All of the witnesses seemingly agree that the appearance and actions of plaintiff indicated that he was either very ill or intoxicated. Defendant‘s special officer, Gammon, testified that, when Gammon reached the plaintiff, “he (plaintiff) was awfully pale; looked to be very sick; he was pretty limber.” While there is some conflict in the testimony as to the manner in which Gammon handled plaintiff, there is positive testimony by certain of plaintiff‘s witnesses that Gammon lifted plaintiff by the collar, or clothing, or by the back of the neck, and that Gammon used his knee in placing plaintiff in the toilet room; that Gammon “gave him (plaintiff) a boost with his knee and shoved him into the toilet; pushed him into the toilet with his knee;” that Gammon “hit him (plaintiff) with his knee, in plaintiff‘s back about the belt, and shoved him (plaintiff) into the toilet;” that Gammon “turned him (plaintiff) loose when he hit him with his knee;” and that Gammon handled plaintiff “rather rough,” or “a little rough,” as some of the witnesses described Gammon‘s conduct. There is evidence that Gammon stated to one or more of the witnesses that plaintiff was drunk; that, when plaintiff‘s wife went to her husband‘s assistance, Gammon said to her that plaintiff had “too much corn juice;” and Gammon admitted, by his own testimony, that he had reached the conclusion that plaintiff had been drinking intoxicants; and, furthermore, when Gammon was asked why he lifted plaintiff from the aisle, he answered, “to get him out of the way.” In other words, the testimony respecting Gammon‘s acts and conduct gives rise to the fair and reasonable inference that
Accepting the evidence on behalf of plaintiff as true, and viewing the evidence in the light most favorable to plaintiff, and allowing to plaintiff the benefit of every inference of fact which may reasonably be drawn therefrom, we are of the opinion that the evidence is substantial and sufficient to establish the commission of the alleged assault upon the body and person of plaintiff by defendant‘s servant, agent and special officer, Gammon. The evidence being sufficiently substantial to establish the commission of the alleged assault, the presumption arises therefrom that the assault was wrongful, willful, intentional and malicious.
The presumption, or rule of evidence, respecting the intent to commit an assault, or an assault and battery, is thus stated in 5 Corpus Juris, 662, 663: “Every person is presumed to intend the natural and probable consequences of his acts; hence some of the elements of defendant‘s liability and of plaintiff‘s cause of action, such as defendant‘s intent or malice, or the wrongfulness or unlawfulness of defendant‘s acts or conduct, may be supplied, thus creating a prima-facie case, where it is shown that the injury was caused by violence to the person, or that defendant acted with wanton, willful or reckless disregard of plaintiff‘s rights. . . . It is not essential, however, that he (plaintiff) should show, in the first instance, by direct evidence, either an intention to commit the injury or that defendant was in fault; but the fact that an assault was committed, or the manner of its commission, may constitute a prima-facie case in plaintiff‘s favor, thus casting on defendant the duty of rebuttal.”
“The only intent required to constitute an assault and battery is the intent to do the unlawful act. [Vosburg v. Putney, 80 Wis. 523.] The allegation of an assault carries with it the allegation of illegality. [United States v. Lunt, 1 Spr. 311; 26 Fed. Cas. No. 15,643.] While the injury must be intentionally inflicted, yet, if inflicted by violence, the law presumes a wrongful intent, and it rests with the person inflicting the injury to show the innocence of the intent. [Atkins v. State, 11 Tex. App. 8.]”
Our own court has very recently said, in Gray v. Earls, 298 Mo. 116, 135: “The petition does not use the word ‘intentionally,’ but, taking the language actually used, it must be construed as charging that the ‘wrongful act’ was intentionally done. This necessarily includes ‘malice’ in the sense in which the term is used in the law. It need not be any personal ill-will toward the party injured. It may be of a general nature, let the injury fall where it may. It may be wantonness or reckless disregard of the rights of others. [McNamara v. Transit Co., 182 Mo. 681; Trauerman v. Lippincott, 39 Mo. App. 486; Goetz v. Ambs, 27 Mo. 28.]”
We think that the evidence adduced by plaintiff made a prima-facie case of wrongful, intentional, willful and malicious assault, by defendant‘s agent and servant, Gammon, upon the body and person of plaintiff. While the evidence on behalf of defendant tended to rebut plaintiff‘s evidence respecting the intentional and willful commission of an assault by Gammon, the ultimate issue was one of fact for the determination of the jury. “The force and effect of presumptions of fact are for the jury, as is also the question whether they have been overcome by the evidence introduced to rebut them.” [38 Cyc. 1518.] There is no variance between the cause of action alleged in plaintiff‘s petition and the proof offered by plaintiff to establish such cause of action. Hence, appellant‘s insistence that the peremptory instruction, in the nature of a demurrer to the evidence, should have been given by the trial court, because of variance between the allegations of the petition and the proof, must be denied.
In the Conner case, supra, it was said by this court: “If there is substantial evidence tending to show that an accident (injury) occurred in any one of two or more ways, or any other number of ways, while the burden rests upon the plaintiff to establish
The trial court properly refused the peremptory instruction, in the nature of a demurrer to the evidence, requested by defendant at the close of all the evidence. The appellant‘s assignment of error must accordingly be overruled and denied.
II. Appellant assigns error in the giving of plaintiff‘s main instruction, numbered 1, which reads as follows:
“The court instructs the jury that if you believe and find from the evidence that on September 14, 1924, the defendant, the St. Louis-San Francisco Railway Company, was a common carrier of persons and passengers and as such maintained and operated a railroad and trains from Springfield, Missouri, to Memphis, Tennessee, and that on said day the plaintiff was a passenger on one of its trains and within one of the coaches thereof, then you are instructed that the defendant owed to the plaintiff, while he was such passenger, if you find that he was then a passenger thereon, the duty not to assault or strike him by or through its officers, agents or servants; if, therefore, you find and believe from the evidence that on the 14th day of September, 1924, plaintiff was a passenger on one of the defendant‘s trains running from Springfield, Missouri, to Memphis, Tennessee, and while as such passenger within one of the coaches of said train, he was assaulted by being kicked, pushed and struck in the back and forcibly and violently thrown into the toilet room of a coach of said train by Ed Gammon, who was, it is admitted, a special officer of the defendant on said train, and whose duties, it is admitted, were to maintain order on said train and to protect passengers on said train from being molested, disturbed or injured by other passengers, or by persons not passengers thereon, while the passengers were within the coaches of said train, and that said assault, if any, inflicted on the plaintiff and caused him the injuries and pain, if any, mentioned in other instructions, then your verdict will be for the plaintiff.”
Likewise, we think there is no merit in the claim of appellant that there is an absence of evidence (to support the plaintiff‘s instruction)
The plaintiff‘s instruction is further criticised by appellant upon the ground that it singles out certain facts from the evidence, without including all the facts in evidence, and that it amounts to a commentary upon detached portions of the evidence. We do not view the instruction as being subject to such criticism. The instruction properly required the jury to find the existence of the essential facts or elements constituting the alleged wrongful assault, and therefore cannot well be said to have singled out such facts or elements of recovery, or to have given undue prominence thereto. Nor does the instruction indicate in the slightest what the trial court thought about the case, or what views the trial court entertained respecting the weight or sufficiency of the evidence. In other words, the instruction does not comment upon the evidence, or upon any part of the evidence. We find no reversible error in the giving of plaintiff‘s main instruction, and the assignment of error must be denied.
III. Appellant assigns error in the admission of certain medical testimony, given by Doctors Latimer and Mott in answer to hypothetical questions propounded by plaintiff‘s counsel. A question hypothesizing the facts in evidence, respecting the commission of the alleged assault upon plaintiff‘s body, and plaintiff‘s bodily ailment and physical condition thereafter, was propounded by plaintiff‘s counsel to Dr. Latimer, in which the medical witness was asked to state whether, in his judgment and opinion, plaintiff‘s physical ailment or condition was the result of lumbago, or whether such physical ailment or condition was caused by the striking and injury plaintiff received on the train at the hands of
Furthermore, the hypothetical inquiry made of the medical witness by plaintiff‘s counsel related solely to a matter of technical knowledge and of medical science, of which technical and scientific subject-matter only a medical expert can speak intelligently, and of which subject-matter lay jurors have little, if any, understanding or knowledge; and, under the late rulings of this court upon the subject, it is not error to permit the medical expert to testify, and to give his opinion, as to what caused plaintiff‘s physical ailment, bodily infirmities and disability. [O‘Leary v. Steel Co., 303 Mo. 363, 375; Wood v. Street Railway Co., 181 Mo. 433, 450; Busch & Latta Painting Co. v. Construction Co., 310 Mo. 419, 443; Rock v. Keller, 312 Mo. 458, 486; Schulz v. Railway Co., 4 S. W. (2d) 762, 768.]
It is further claimed by appellant that the hypothetical questions propounded to the medical witnesses, Doctors Latimer and Mott, assumed certain facts not in evidence, and omitted certain facts shown in evidence. The hypothetical questions thus criticised by appellant are quite lengthy, and no purpose will be served by quoting them herein. Suffice it to say that we have carefully read and analyzed the criticised hypothetical questions, in the light of the evidence set out in the record before us, and we find that such questions fairly and fully hypothesized the substantive facts and circumstances in evidence. The objections interposed at the trial to such hypothetical questions were general in nature, and counsel for defendant on the
Appellant does not suggest or assign that the verdict of the jury is excessive in amount, as respecting either the compensatory damages allowed, or the punitive damages assessed. Our attention has been directed to no reversible error committed by the trial court, and we find none in the record before us.
It follows that the judgment of the circuit court must be affirmed, and it is so ordered. Lindsay and Ellison, CC., concur.
PER CURIAM:—The foregoing opinion by SEDDON, C., is adopted as the opinion of the court. All of the judges concur.