167 Mo. App. 533 | Mo. Ct. App. | 1912
This is an action to recover damages for personal injuries plaintiff alleges were . caused by negligence of defendant.
The injury occurred at eight o’clock p. m., March 6, 1907, near the intersection of King Hill and Kansas avenues in South St. Joseph. King Hill avenue runs north and south and is the main thoroughfare connecting South St. Joseph with the old and main part of the city. It is paved and is crossed by Kansas avenue which at this intersection makes a jog, the eastern prolongation being some distance south of the street west of King Hill avenue. Northbound cars 'running on King Hill avenue have a regular stopping place at the northwest comer of the intersection of the eastern extension of Kansas avenue and King Hill avenue and this point is southeast of the southwest corner of the intersection of the westward portion of Kansas avenue. Defendant maintained a telegraph line on King Hill avenue and one of the guy poles of this line was at a point in the sidewalk on the west side of the street
It appears from the evidence of plaintiff that while the darkness was too intense for her to see an object as small as the wires there was light enough to disclose the presence of larger objects. There was a street light about 400 feet south on King Hill avenue and another the same distance north, but there were intervening obstructions such as shade trees and the night was misty and foggy; The negligence on which plaintiff relies for a recovery was the failure of defendant to encase the lower ends of the guy wires in iron pipes. The answer, in effect, is a general denial. Plaintiff prevailed at the trial and the action is here on the appeal of defendant from a judgment of $1000 recovered by her.
First we shall consider the argument of defendant in' support of its contention that a demurrer to the evidence should have been sustained. The evidence of plaintiff abundantly supports the conclusion that defendant was negligent in not encasing the guy wires. The right of defendant to maintain a telegraph line- and its necessary appurtenances in the public street is unquestioned but'the exercise of such .right was burdened with' a doty towards others rightfully using the- public highway. This duty required of defendant the exercise of reasonable care to construct and maintain its line in a manner reasonably safe to travelers. King Hill avenue' was a busy street and defendant was duty bound to anticipate the likelihood of • pedestrians crossing the street as plaintiff did on the occasion in
We think the evidence of plaintiff does point with reasonable certainty to the collision with the guy wire as the cause of the disease which subsequently appeared. We would not be justified in denouncing the expert evidence of plaintiff as wholly unworthy of belief. We have no judicial knowledge of the causes of the disease in question and to hold that defendant’s expert evidence on the subject is true and that of plaintiff false, is a conclusion that could, be reached only by an invasion of the province of the triers of fact. Moreover expert evidence at best is only advisory. The proneness of doctors to disagree has passed into a proverb and this tendency is never more marked than in the trials of lawsuits where doctors are arrayed against each other on the witness stand. The jury were entitled to exercise the right of rejecting all of' the expert evidence and if the facts and circumstances adduced by plaintiff were such as to induce a reasonable conclusion among men of common sense and experience that the disease had its origin in the injury in question, the jury should be allowed the privilege of adopting such conclusion. It appears that plaintiff was in good health before her injury; that she received a severe blow on her breast, that the soreness and tenderness caused by the injury continued despite her .efforts and that finally the soreness appeared to result in a diseased condition of the área affected by the blow. We have here a chain of consequential events completely connecting the disease with the injury. The jury were not compelled to resort' to guess and speculation to reach a verdict for plaintiff, and we hold that the burden of proof relating to this issue was fully discharged. ’[Sharp v. Railway, 213 Mo. 517.] The demurrer to the evidence was properly overruled.
There is some question of the timeliness of the objection under the rule that requires an objection to be interposed before the answer is given; but our understanding of the colloquy in the record is that the tardiness of the objection was accidental and not intentional and that as soon as the point was made, counsel for defendant did all he could to raise the question of the propriety of the evidence and that his motion to strike out was overruled, not on the ground that it came too late, but on the ground that the evidence was not objectionable. We think the evidence thus called in question came under the ban of the hearsay .rule and that prejudicial error was committed in overruling the objection. The rule in this State is that a physician introduced as a witness by his patient in a case of this character may testify about the present symptoms of his patient and repeat the statements of the patient to him relating to such symptoms but should not be allowed to repeat the history of the case given by the patient during the examination. [Gibler v. Railroad, 129 Mo. App. 93 ; Holloway v. Kansas City, 184 Mo. 19; Dunlap v. Railroad, 145 Mo. App. 215; Brady v. Traction Co., 140 Mo. App. 421.]
The statement of plaintiff to the physician that the origin of the disease was a blow she received on the breast was the narration of a past event and the repetition of that statement was hearsay. In view of the sharp' conflict in the evidence over the issue to which this testimony was addressed the error must have been