172 Mo. App. 502 | Mo. Ct. App. | 1913
This suit is for personal injuries sustained by reason of being knocked down and rolled over by an automobile driven by defendant’s negro chauffeur who was taking the automobile home pursuant to defendant’s commands.
Plaintiff and her sister were walking home on the right hand side of Grand avenue going south and had reached a point between Twenty-fifth and Twenty-sixth street where the sidewalk ended close to a rock crusher. When the two ladies reached the end of the sidewalk, they stepped out into the street, which was paved with asphalt, and, keeping near the west curb, continued on their way south. Just after stepping from the wayside, to avoid the dirt or dusty path where the sidewalk did not exist, the ladies looked back up the avenue and saw defendant’s automobile coming, but it was out in the center of the street, and as they were near the west curb, there was no danger whatever from it, so they proceeded on their way south. There was a space of twenty-four feet between this west curb and the west street car track. At the time the ladies looked behind them, the automobile was perhaps 150 feet away and apparently in the middle of the street; and between the ladies and the west rail of the street car track was a space of at least twenty feet. In a moment the automobile, without warning or noise of any kind, swerved out to the curb and struck the ladies, knocking them down and rolling them over on the pavement until the automobile struck the curb, ran up over it and against a trolley pole, and stopped. The first the ladies knew of the car being out from the center of the street and upon them was when it struck them. When the automobile stopped against the pole it was headed in a southwest direction.
The rubber tire of the left front wheel was off. During the day it had been taken . off, owing to a puncture, and the wheel was “riding on the rim,”
The next day after the injury the defendant went with his chauffeur to the place where the collision occurred and had the details of the accident related to him. Afterwards, in talking to the mother of plaintiff, defendant said, speaking of his automobile, “I have owned it for eight years and never had •an accident with it. It is very easily controlled. I could stop it within 'five feet. He (meaning the •chauffeur) must have lost his head.” The accident occurred on June 3, 1911, and on the 13th of June, when the chauffeur’s month was up, the defendant refused to pay him, giving as his reason for refusing, that it was his fault that caused the trouble with the ladies.
It was in evidence by the chauffeur that the automobile was not going over five miles an hour; and there were no obstructions between the automobile and the plaintiff to prevent the chauffeur from seeing and warning her. That, at that rate, the car could have been stopped in five feet. The negligence charged was that the servant in charge of the vehicle failed and neglected to use the highest degree of care that a very careful person would use under like or similar circumstances in that there was a failure and neglect do warn plaintiff of the approach of said car, or to
Complaint is made of plaintiff’s instruction No. 4, but we are unable to see any merit in the objections thereto. It did not assume any fact at all much less ■a fact in dispute. Nor was it objectionable because it ignored the question of the reasonableness of the time in which the chauffeur could have warned plaintiff or stopped the ear. The chauffeur swore he was going up grade, not over five miles an hour and could have stopped in five feet. Later on he testified that he saw the women when they stepped from the sidewalk into the street and that they started across the ■street, that he turned to the left but a street car coming from behind caused him and the women to turn towards the right; that when he saw the women in front of his ear they were twenty feet away and he attempted to pass them by going between them and „ the curb and in doing so struck them. In other words, he saw the women in front of him still going south but going diagonally down the street and approaching the curb and, although he could have stopped the car in five feet and allowed the women to reach the curb in safety, he attempted to pass them on the right by going between and the curb and in doing so struck them. Consequently, by his own admission, he saw them in a reasonably sufficient time to have warned them or to have stopped his machine before striking them. He says he did warn them, but admits he did not stop. Plaintiff says he neither warned her nor stopped, and, on appeal, we must accept that
Plaintiff’s instruction No. 5 is not open to objection. It merely told the jury that “it is averred by the defendant in his answer that any injuries that the plaintiff received at the time and place in question were received because of her own negligence at the time, which directly contributed thereto” and that the burden was on defendant to prove “such contributory negligence.” We are unable to see anything wrong with it. Defendant certainly did set up the defense in his answer.
The sixth instruction is likewise unobjectionable. It did not tell the jury that plaintiff’s injuries, or any of them, were permanent, but that if the jury found there were injuries they should take them into consideration, and, if any were permanent,- the jury could take that into consideration in arriving at their assessment of damages. This was not telling the jury to guess at the permanency of any or all of said injuries, but only that, if any injury was believed by the jury to be permanent, they could take the fact of such permanency into consideration. There was sufficient testimony as to the permanency of the injury to the womb to justify the submission to the jury of the question of permanency, although the evidence as to permanence was not altogether free of doubt.
There was no error in admitting the testimony of Dr. Harrington that he thought her womb was injured at the time he first examined her. He was not allowed to tell what the patient told him. That was excluded. And while he testified that he made no local examination, his testimony as a whole shows
Plaintiff’s expert witnesses were allowed, over defendant’s objections, to state that in their opinion the impaired condition of the plaintiff’s womb could have been caused by being struck and rolled over by an automobile. When, ’ however, defendant’s experts were asked questions bearing upon whether the collision could have caused the injured or diseased
Before going into this question let us bear in-mind the issues before tbe jury. Tbe plaintiff was-claiming tbat among ber injuries was one to ber womb; and tbe evidence showed tbat tbe only injured condition hkely to be permanent was tbat of tbe womb.. Tbe evidence also showed that the plaintiff was struck on tbe back and hip. There was no bruise or apparent injury to tbe abdomen, nor was there any hemorrhage from any of tbe pelvic organs. And plaintiff's experts bad been asked whether tbe condition of tbe womb could have been caused by an automobile striking plaintiff in tbe back, throwing ber to the-pavement and robing ber over. And both of plaintiff’s experts bad answered that it could. One of them bad expressed a little doubt as to whether a. stroke on tbe back would necessarily cause it, buttbat tbe general accident, shock, contusion, concussion and so on might do it. But, on being asked whether or not tbe condition of tbe womb could have-been caused by being struck by an automobbe and being robed by tbe automobile on tbe pavement, be-said be thought it could. In tbe questions asked by plaintiff there was no statement of tbe facts, circumstances or conditions under which tbe accident occurred or tbe force with which she was struck, simply whether or not tbe striking of plaintiff in tbe back,., throwing ber to tbe ground and rolbng ber on the-pavement by an automobbe could cause tbe impaired condition of tbe womb. Defendant objected to these-questions because these elements were not included in tbe questions, and for other reasons, but tbe objections were overruled, and tbe plaintiff’s experts were allowed to answer. In this state of tbe evidence • one of defendant’s expert witnesses (defendant himself who was a physician of twenty-five years’ experi
Plaintiff contends that the questions put by her to her experts were not hypothetical questions and hence did not have to include the necessary element» that the questions to Doctor Hetherington did. It would seem that if plaintiff’s questions were not hypothetical neither were defendant’s. We are inclined to think they were all of the same character, simply questions put to experts as to whether or not the collision could have caused the impaired condition of the womb. If it be urged that it is within the discretion of the court as to whether an expert can be referred to the testimony instead of recapitulating the facts, the answer is that such discretion should not be exercised one way on plaintiff’s side and the contrary way on defendant’s.
Another expert witness, Dr. Ayres, who was appointed by the court to make a personal examination of the plaintiff and who was offered by defendant, testified as to the condition in which he found her womb, and that two causes could produce the condition he found, namely, that a percentage of women are born that way, and inflammation of the womb and of the organs about the womb could in course of time produce it. The defendant then attempted to show by him his opinion as to whether the condition he found was the result of, either of said two causes or the result of a blow or injury, but an objection on the part of plaintiff was sustained. Defendant then asked the witness what kind of a blow it would require to cause the result he found in plaintiff. An objection
For these reasons we are of the opinion that error was committed and that a new trial should be granted. That plaintiff was struck by the automobile through the negligence of defendant’s negro chauffeur and is entitled to damage was undoubtedly shown. The extent to which she was injured, however, is a matter which the defendant has as much right to have fairly litigated as the question of liability, since it governs the amount which he should be called on to pay. Inasmuch as the case is to be retried, it may be well for us to state that, under the facts as presented, there was no error in refusing defendant’s instructions 9, 10, 11 and 12. Reversed and remanded.