215 Mo. 105 | Mo. | 1908
This action was begun by Mrs. Helen M. Quin in tbe circuit court of tbe city of St. Louis in 1905. She recovered judgment and tbe defendant appealed to this court. On July 14, 1908, tbe death of Mrs. Quin was suggested in this court and regular steps were taken and tbe cause was revived in tbe name of Mr. Rearden as her administrator.
Tbe plaintiff in substance stated that tbe defendant was a railroad corporation and a common carrier of passengers in tbe State of Missouri; that on tbe 20th of November, 1903, she became a passenger upon tbe defendant’s road, having purchased a ticket entitling her to a first class passage on defendant’s, road from St. Louis to a station called Linclenwood; that on arriving at said Lindenwood, defendant did not stop
The amended answer by leave of the court wac filed during the progress of the trial on October 27 1905, and consisted, first, of a general denial of the allegations of plaintiff’s petition, and, secondly, that
To this answer plaintiff filed a reply denying all the new matter set up in the answer.
There was a verdict and judgment for the plaintiff for $5,000. Motions for new trial and in arrest of judgment were promptly filed, heard and overruled, and an appeal was taken to this court.
The evidence discloses that Mrs. Helen Quin lived in Lindenwood, and on the morning of the 20th of November, 1903, went to St. Louis on defendant’s train. Lindenwood is about seven miles southwest of the Union Station in St. Louis. That afternoon Mrs. Quin returned to Lindenwood on one of defendant’s trains, which left St. Louis at 5:24, and was due at Linden-wood at 5:47, but was about eight minutes late. When she reached Lindenwood it was dark. As the train came into the station at Lindenwood, the station was announced by the defendant’s conductor. Mrs. Quin was sitting in' the .fourth or fifth seat from the front door on the west end of the coach; when the train stopped she got up and went out of that door which was closest to her. When she reached the platform of the oar, it was dark, there were no lights and she proceeded to get off of the car, and took hold with her right hand of the rail to get down. As she got to the last or lowest step, ‘the distance was so- great to the ground that in stepping off she did not reach a solid foundation and her right arm was wrenched loose and she was thrown over and struck on the back
Mrs. Lindburg went on the train with plaintiff from Lindenwood to St. Louis the morning of the day the plaintiff was injured. They occupied the same seat. She remembered hearing the plaintiff met with an accident that day. She did not see her for some time, some two or three months after that; during that time she lived on the adjoining lot to the plaintiff.
Mrs. Nellie Linsey, the sister-in-law of the plaintiff, who had known her for twenty-one years, and had seen her frequently during all that time, testified that
Dr. R. S. Hill testified that he was a physician, a graduate of the Homeopathic Medical College of Missouri, and had known the plaintiff since 1902; he was called to treat her professionally on the morning of November 21, 1903. Her husband asked him to call. He went to their house and found the plaintiff in bed, complaining of a severe headache, great pain in her back between the shoulder blades, and said that the pain would start there and shoot clear through her body, also had severe pains in her left knee and right •shoulder. He was told the history o‘f the case as above detailed and he examined her carefully. He found no outward bruises or abrasions, the symptoms being all subjective, that is, a symptom given by .the patient of her feelings. She had a very low, soft pulse, which ifidicated a considerable shock. He administered anodynes and opiates, and changed a number of times, the pains were exceedingly stubborn, and did not yield to his treatment. He then applied liniments and outward applications, but for a long time without success. He worked on the case for probably two. months, then afterwards visited her at- longer periods. He continued to prescribe for her after that. He testified that an abnormal pulse could not well be simulated. A hypothetical question covering the ma
Frank Murphy and Mr. Isaac Brown, both of whom were in business in St. Louis but lived at Linden-wood, testified to having occasion to use defendant’s railroad from Lindenwood to St. Louis for a number of years. They were familiar with the condition of defendant’s station and tracks throughout the month of November, 1903. On the 20th of November there were three tracks at this station. The company was retracking its station and relaying its tracks, excavating the natural soil and putting in cinders and changing the tracks. The evidence was that at that date there were piles of cinders and gravel that had been thrown out by the construction men, waiting for the
Other witnesses testified to the general good health of the plaintiff prior to her injury and to* her inability to do anything about her household duties after her injury, and the fact that she was confined to her house and bed after she was hurt.
Two physicians, Dr. Farrell and Dr. William M. Hoge, testified as experts in the ease. Dr. Farrell was a graduate of Washington University Medical Department and was in the clinic in the University Hospital. He was surgeon of the First Regiment and acquainted with the plaintiff. He examined and diagnosed plaintiff’s case some- five weeks before the trial, making a thorough examination and subsequently assisted Dr. Hoge. He found certain paralytic conditions, namely, her inability to raise her arm above a certain point; her inability to raise her arm to the head above •a right angle; difficulty in walking; apparently little use of "the left arm; want of sensitiveness in certain muscles, on the application of a sharp instrument' she could not tell whether it was the point or the head of a pin, and she could not feel it when stuck in her. He tested the whole of her body. He thought this condition was permanent.
Dr. Hoge, a physician of twenty-two years practice, a graduate of the St. Louis Medical College' and
There was other evidence as to the condition of the station grounds practically to the same effect as already detailed by the other witnesses.
On the part of the defendant August Oberfelt, a civil engineer, in the employment of the defendant, testified from a profile map* showing the changes that had been made in the defendant’s station yard at Lindenwood in 1908. He did not make the survey himself and was not employed in making the changes at
J. W. Withington testified that he was a conductor on the defendant’s train that left St. Louis at 5:2é on the afternoon of November 20th, 1903; that it was his •duty to be between the smoker and the first ladies’ coach. The out-bound trains used the track to the north and there was no platform at Lindenwood and the station ground was usually filled up with cinders. He testified that the train that night consisted of five cars, a baggage car and four coaches. The baggage car was next to the engine and the smoker next to the baggage and the other three coaches were for passengers, ladies and gentlemen. These cars were lighted before they left the station in St. Louis with what is known as pinch gas lamps. There were four lamps in a car up in the ventilator. These cars had large windows. He testified that when they got to Linden-wood, his station was between the smoker and the first ladies’ car discharging and taking up passengers. He had his conductor’s lantern with him, there was a brakeman and a porter who worked back in the next two cars. There were five places on that train where people could get off and there were only three em
F. Huffsmith testified that he was brakeman on that train, but he cannot remember the condition of the ground at the station about the 20th of November. His duty was to help passengers on and off the train when it stopped. He remembered that they had cinders put in at Lindenwood and that the distance from the step of the train to the ground, when they were lowering the tracks, was greater than at other times, he could not say how much.
George Daish, superintendent of construction, testified that he was double-tracking the Frisco in 1903 from Chouteau to Spring Park. He testified that there was no platform at Lindenwood between the tracks, but that there were cinders. The company excavated during the day and moved the track over and filled in at night.
Testimony of the defendant’s witnesses was to the -effect that some work had been done in the way of
The defendant also introduced as a witness Dr. Floyd, a surgeon of the defendant, who testified that he made a careful examination of plaintiff in December, 1903, soon after the accident, and could discover no objective symptoms of any injury, and at this time she was in bed with her clothes on, such clothes as a woman usually wears about her house, and with a cold cloth around her head and he thought had been placed around her head just before he was admitted to examine her. He testified he went to her home and was invited by her husband to come in and see her. She was in bed with a cloth tied around her head, groaning, she said she was feeling badly. I asked her how long she had been confined to her bed, and she said several days. I discovered that the cloth around her head was cold, did not have the warmth of her body. He said to her, he would like to find out all about this, and she said “certainly,” and without much ado he pulled down the covers, and she was in bed with her clothes on. “I went on with the examination and could discover no objective symptoms of injury of any kind.' I found her memory was good. She said she had great pain about her shoulders, but upon applying a test for pain, her condition showed me she had no pain, or it was imaginary.” On cross-examination he stated that the .dress that she had on was an ordinary calico dress or wrapper, and the usual underclothes; she had on no shoes. He further stated in answer to the question: “In your experience have you ever known a person to have suf
I. It is insisted by the defendant that the circuit court should have directed a nonsuit on the ground that the contributory negligence of the plaintiff barred her recovery. This contention is predicated upon the fact that it was negligence on the part of the plaintiff to leave the car at the door through which she passed out because the other passengers went out at the other door, and that when she reached the platform of the ear she found it was dark out there, and she found no conductor or other train men there to help her off,' and she had no right,, or at least was negligent, in attempting to pass from the car under such circumstances; that to attempt to alight from the car in the darkness was fraught with danger, even though the surface of the ground was level and a normal distance from the car steps. In this same connection it is argped that because the plaintiff came to this same station in the morning when she went to St. Louis and was there some five or ten minutes before her train arrived for. the city, it was impossible for her to have failed to observe the condition of the ground that forenoon and see that it was rough, uneven and excavated as her evidence tended to show; that her apprehension that she might not have time to go back to the other end of the car to alight did not justify her in taking the risk of alighting at this door or from this platform. And that any accident or injury that did •occur to her was the result of her own carelessness in not availing herself of a safer method of leaving
The testimony tended to show that when the train reached Lindenwood it was dark; that this train, which was a suburban passenger train, usually stopped about one minute to allow passengers to alight; that the-front door was not locked and no warning was given passengers to go to the rear door to alight instead of the front door; that although it was dark, plaintiff was not advised it was dangerous to go out at that door and leave the car. It was the duty of the defendant to provide suitable, safe and convenient means for the ingress and egress of its passengers into and out of its trains. It stands admitted that this train did not stop at the platform, but passengers were compelled to alight on the ground. Plaintiff testified she expected to find a brakeman or porter to assist in alighting, but finding none and fearing that she might be carried to the next station, thought she could get off in safety by herself, and by reason of the great distance to the ground, which she could not measure-in the darkness, she fell,- and her hand was wrested from the handrail. Being near the front of the car, plaintiff says she did not notice, when, she went out, what direction other passengers were going and she was not directed to go to the other door. By this assignment of error, defendant seeks to avoid liability by insisting that plaintiff was guilty of such contributory negligence as will bar her recovery because she voluntarily adopted a dangerous way when a safe way was open to her. But this defense is inconsistent with the testimony of the defendant’s conductor, who testified that he was at that front door with his lan
"We think that the question of plaintiff’s contributory negligence, under all the facts developed in this case, was a question for the jury, and that the court properly refused the demurrer to the evidence on that ground.
II. It is next insisted by the defendant that it was required to exercise only ordinary care as to its platform and station grounds. It assails the first instruction given by the court in behalf of the plaintiff in that it told the jury that, ‘ ‘ The defendant owed the plaintiff the duty of exercising that high degree of care which a very cautious and prudent person similarly situated would exercise for her own safety, including the matter of providing her'with a safe means of egress from its train at the point of her destination, and the failure of the defendant to exercise such degree of care would constitute negligence,” and, “If from the evidence they believe that the plaintiff, on November 20, 1903, was a passenger upon one of defendant’s trains, and that her destination was Linden-wood Station, and that at Lindenwood Station the defendant stopped its train for the purpose of allowing plaintiff to disembark and plaintiff in the exercise of ordinary care, that is, such care as an ordinarily prudent person similarly situated would exercise in her attempt to disembark from said train, was injured by reason of stepping into or falling into a hole or excavation that existed there, if they found such excavation or hole existing, • and that the de
The instruction complained of did not hold the defendant to the high degree of care required for a passenger as to the condition of its depot grounds, but did hold it, and properly so, for that high degree of care in inviting the plaintiff to alight at an unsafe place in the dark. We think the instruction fairly and correctly presented the law as to the duty of the defendant, and that there was no error in giving it.
III. Error is predicated upon the refusal of the court to exclude the testimony of Mrs. Quin as to the effect of the injury upon her lower limbs. The evidence on this point was as follows: “Q. How about your lower limbs? Ans. It is this left limb that is giving out completely, so I fell several times trying to get up'. Q. Are you able to walk without assistance or to go about? Ans. No, sir.” No objection was made to these questions and answers at the time they were propounded and answered, but soon after these replies were given, counsel for the defendant stated to the court that his attention had just been called to the fact that there was no allegation in the
IV. It is next urged that the court erred in permitting the plaintiff to introduce opinion evidence as to the health and physical condition of the plaintiff by non-expert witnesses. As to this point, Mrs. Chambers testified that the plaintiff had lived at her house since the accident. She was asked, what is her physical ■condition, and she answered, “I should say it was very poor.” Mrs. Brown said she had known the plaintiff a long time and had seen her three times since she claimed to have been injured. She was asked what was her condition then. This was objected to as incompetent and immaterial and the competency of the witness had not been shown. She answered that
In Railroad v. McLendon, 63 Ala. 275, 276, a non-expert witness testified that “the plaintiff seemed to be suffering during the time she stayed at Mrs. Griffin’s. . . . She was not able to use her arm a large part of the time for several months after she fell from the mare at the bridge. . . . The left wrist of plaintiff looked like the bone had slipped off the joint. . . She looked bad.” In considering the objection to this non-expert testimony, the court said: “All these are but facts, or, at most, conclusions of fact; awkwardly expressed sometimes, it is true; still, we find in them nothing to which a witness may not testify.” And the court quoted with approval Wharton on Evidence (3 Ed.), volume 1, section 510, in which the author says: * ‘ The true line of distinction is this: an inference necessarily involving certain facts may be stated without the facts, the inference being an equivalent to a specification of the facts. ... In other words, when the opinion is mere short-hand rendering of the facts, then the opinion can be given, subject to cross-examination as to the facts on which it is based.” In Railroad v. Cassell, 66 Md. l. c. 432, the court said: “If ordinary individuals could not judge of a person’s health from his appearance and symptoms, it would be impossible to know when it was necessary to call in a physician. If a man received a blow from a heavy bludgeon on his lower limbs, certainly an unlearned
Y. Defendant complains of the refusal of its second instruction, which in substance was that if, on the morning of November 20, 1903, the surface of the ground at and in front of defendant’s station was in a rough, uneven and dangerous condition and such condition was apparent and known to plaintiff, when she was there in the morning and when the train stopped there that evening, and plaintiff went out of the front door to alight, and when she reached the platform it was so dark she could not see where the train was standing or whether it was safe or dangerous to alight there and with such knowledge attempted to alight and without making any effort to secure the assistance of any member of the train crew or other person and was injured in stepping down, then as a matter of law, she could not recover. There are a number of reasons why no error was committed in refusing this instruction. The question of plaintiff’s contributory negligence was fully presented to the jury in plaintiff’s first instruction, which required as a condition
VI. The refusal of the defendant’s twelfth instruction is also urged as error. This instruction told the jury that if plaintiff went out of the car that night at the front end, and when she opened the door found the place was dark and no brakeman present to assist her in alighting and with such knowledge attempted to alight and was injured, and such injury would not have occurred if the place had been lighted, and there h.ad been a brakeman present to assist her, then she could not recover. This instruction was inconsistent with defendant’s instruction numbered. 5, which told the jury that it was not the duty of the defendant nr its trainmen to assist plaintiff in alighting unless
VIL Finally, it seems to be the contention that plaintiff was not injured but was simulating, and that Dr. Floyd’s evidence establishes that she was not hurt as her evidence tended to show she was. We think this was an issue for the jury. There was sufficient testimony, if believed by the jury, and it evidently must have been, to. justify the jury in finding she was seriously injured. The jury saw and heard the witnesses testify. It was peculiarly their'duty to weig'h the credibility of the witnesses. The circuit court also had this advantage and it approved the verdict. The evidence was all oral. There is nothing which would