125 Mo. App. 231 | Mo. Ct. App. | 1907
This is an action for damages for personal injury alleged to be the result of the negligence of the city in failing to keep its street in a reasonably safe condition. The respective parties do not differ materially in their statements of the main facts of the case. The plaintiff, a young woman twenty-two years of age and weighing about one hundred and forty pounds, was injnred at the southwest corner of Sixteenth and Wyoming streets in Kansas City, Missouri, by slipping on a loose brick at the edge of a hole in the street, the brick turning under her weight as she stepped upon it in alighting from the car or as she started to walk just afterwards. The defect was shown to have existed for several weeks prior. It is agreed that she sustained injuries to her ankle and one of the hips, but there is a dispute as to the extent of these injuries. After receiving treatment by a medical student at a place nearby, she was sent in a carriage to her home. She was confined to her bed for ten days and afterwards for the period of five weeks was compelled to use crutches in moving about.
Plaintiff’s testimony tended to show that by reason of her injuries she lost her position as employee in a cigar store. After she became able to go about she was employed by a telephone company for a short time
Defendant complains of the action of the court in refusing to give its instruction numbered five as requested and modifying it. The instruction as asked reads as follows: “The jury are instructed that, while it was the duty of defendant to keep its streets in a reasonably safe condition for persons traveling thereon, in the exercise of ordinary care; it was also the duty of plaintiff to use her eyes and senses to discover any defects in the street, that might have been apparent, and to use ordinary care to avoid the same; and if they believe from the evidence that plaintiff failed to
While Mr. Hayward, counsel for defendant, was addressing the jury he said: “Gentlemen of the jury, this is nothing but a sprained ankle; when you have a sprained ankle received by a fall in your front doorvard, or on your stairway, you have no such terrible consequences as these, and it- is strange that they should be so magnified where there is the same injury on a public street.” Mr. Walsh, counsel for plaintiff, said: “That is objected to because it is not covered by the evidence.” The court said: “The objection sustained; there was no evidence of that kind. The remark must be withdrawn from the jury.” Mr. Hayward then said: “Dr. Wilson said that if an injury of this kind had been properly dressed and treated, there might be a' recovery.” Mr. Walsh: “I object to that; there was no evidence of the kind.” The court: “Objection sustained; I don’t think that was the testimony of Dr. Wilson. The jury will remember the testimony.” The defendant’s counsel objected to the action and ruling of the court, which objection was overruled and defendant excepted. The defendant’s counsel disclaimed any intention “to misrepresent the facts.
An examination of Dr. Wilson’s evidence as to whether plaintiff would recover from her injuries, as shown by the abstract, is as follows: “Q. But there is no reason to doubt but what there will be ultimate recovery? A. Well, that is an open question. Q. In all probability? A. It is owing to how it was treated in the first place whether it ever recovers or not; that is from my point of view as a surgeon; if you tell me how it was first treated. Q. If the treatment was proper in the first instance, there is no reason to doubt the ultimate recovery? A. That might be.” The counsel was stating the evidence of Dr. Wilson with remarkable accuracy when the objection was made by the plaintiff’s
The judge committed a very serious error in our opinion when in the presence of the jury he said, “I don’t think that was the testimony of Dr. Wilson.” The fact that defendant’s counsel was stating the evidence of Dr. Wilson correctly, the action of the court practically deprived defendant of the benefit of that evidence, unless the jury undertook to decide the question for themselves without reference to the remarks of the judge. But we all know that they did not in all probability so consider the matter, but took the words of the judge as a decision of the question and rejected the statement of defendant’s counsel and the evidence altogether. Under the practice in this State, it is the duty of the, judge to instruct the jury as to the law, and the jury under such instructions are to be the sole judges of the facts and the application of the law, as given, to the facts as found. The judge has no power to instruct them what are, or are not, the facts in the case, and, if he does so, he infringes upon the province of the jury. The remarks of Lewis, P. J., in Wright v. Richmond, 21 Mo. App. 76, are appropriate to the facts of this case. He said: “Every one at all familiar with court proceedings knows how easily the average juror takes impressions of the merits of a cause from any manifestation of the judge’s opinion of them. It is the first duty of every trial judge, in the presence of the jury, to preserve a strict neutrality, and carefully to abstain from intimating, except through the legitimate chaunel of instructions, his opinion as to which way the verdict ought to go. Any other course must deprive the suitor of the most valued privileges pertaining to the right of trial by jury.
Our courts are inclined to be very strict in reference to any matter calculated to influence a jury by means
Plaintiff’s counsel seeks to evade the error by reference to the entire testimony of Dr. Wilson, which it is claimed shows that it was the opinion of the witness that plaintiff’s injuries were permanent and that the verdict was for the right party. The verdict may be for the right party, but more than that is involved in the question. The evidence, which the court practically excluded, did not go to the question of plaintiff’s right to recover, but to the amount of such recovery. And the evidence of Dr. Wilson considered as a whole may have gone to show that plaintiff’s injuries were permanent, and that the action of the court in the par
As the cause is to be retried, it is not necessary to pass upon the questions as to whether the verdict was excessive and that the court committed error in overruling, defendant’s motion for a new trial on the grounds of newly-discovered evidence.
Reversed and remanded.