60 Mo. App. 187 | Mo. Ct. App. | 1895
The plaintiff sued the defendant Michel, who is a liveryman, and the Peoples’ Railway Company for personal injuries received by her while being driven in a carriage belonging to Michel. The injury was caused by a collision between the carriage and a grip car on the street railway. The petition averred negligence both on part of the driver and the gripman. On the trial the jury returned a verdict against Michel alone for $400. The finding was in favor of the railway company: The plaintiff remitted $100 of th¿ recovery, and the court entered. judgment for the residue. Michel alone has appealed, and he complains of the refusal of the court to admit competent evidence
The collision occurred while the driver of the carriage was attempting to cross the track of the street railway in front of an approaching grip car. There was evidence tending to prove that, when the driver started to cross the track, another vehicle was unexpectedly driven in front of the- carriage, which compelled the driver to check his team. After the driver had stated that he was an experienced driver, the question was asked by appellants’ counsel whether or not in his opinion he could have crossed the track in safety, had his team not been'intercepted by the other team. The court declined to let the witness answer the question, but the appellant failed to save any exception to the ruling. The assignment will, therefore, be overruled.
The plaintiff’s instruction as to the measure of damages authorized the jury to include in their finding any expense paid by plaintiff, or for which she had become obligated, for medical attendance on account of the injuries received. The contention is that there was no competent evidence to support a finding as to that item of damage. The plaintiff testified that she called on her physician for the purpose of having her injuries examined. The physician testified that he made a casual examination of a lump on the plaintiff’s head, but he does not state that any charge was made, or that plaintiff paid him anything for that. However, he did say that previous tó the accident he had been treating the plaintiff for uterine troubles, and that subsequently
• The question presented is rather a close one, but we are inclined to the opinion that the circuit court was justified in giving the instruction. It is a principle applicable to all actions of tort that the damages which may be recovered, whether they be general or special, must be the result of the wrongful act. Another principle which enters into this case is that, where the damage claimed may have resulted from two or more causes, for the consequences of one of which only the defendant is liable, then there can be no recovery, unless it can be determined from the evidence that the cause, for the consequences of which the defendant must answer, most largely contributed to the damage claimed or the expense incurred. The disease for which the plaintiff was treated was undoubtedly the result of some disturbance of the organs which existed prior to the accident, but, according to the evidence of the physician, she was-fairly and surely convalescent, and he gave it as his opinion that the relapse which she suffered was in all probability produced by the injuries received or the shock to her nervo-us system. This, we think, brings the case within the rule stated, and author-’ ized the instruction.
Among other other instructions given at the request of the People’s Railway Company was the following, of which the appellants complain: “The The court instructs you that, while all persons and vehicles have a right to use the public streets, street railway companies have the right of way over their tracks,
This was a triangular contest,- and the appellant has a right to eompiain of the instructions of his codefendant in so far only as they imposed on him a greater burden than he ought to assume. One of the objections made to the foregoing instruction is that it ignores the proof that- the grip car was standing still when the driver attempted to cross the track. There is no merit in this. At the request of the appellant the jury was fully instructed on this particular theory of the evidence. They were told that, if at the time the driver of the appellants undertook to cross the track of the street railway the grip car was standing still, and so far removed as to make it reasonably safe to attempt to make the crossing, and that after starting across the carriage was intercepted by another vehicle, and that after the vehicle had passed it was more prudent and safer under the circumstances to move onward in front of the then approaching grip car, then there could be no recovery against the appellants.
The instruction states the use to which the streets
After the retirement of the jury, they asked for further instructions. The plaintiff’s attorney was not present, and the attorneys for the railway company declined to consent. Thereupon the attorneys for the appellants prepared and submitted to the court additional instructions, which the court declined to give. Of this the appellants complain. It is the established practice that trial courts may at any time before verdict in futheranee of justice give additional instructions. But we know of no case where it has been held error for the court to refuse to do so.
Finding no error in the record, the judgment of the circuit court will be affirmed.