Schermer v. McMahon, 108 Mo. App. 36

Schermer v. McMahon

108 Mo. App. 36 | Mo. Ct. App. | 1904

REYBURN, J.

— While in defendant’s employ engaged with other laborers in digging a trench for reception of water pipe, a passing street car running along and near the course of the excavation caused its near wall to fall in, burying plaintiff up to his neck and resulting in the injuries complained of. The action originated before a magistrate and upon trial anew in the circuit court, the jury returned a verdict for plaintiff, from which defendant has appealed. The trial court permitted testimony to be introduced by plaintiff over defendant’s objection thereto, that shortly after the catastrophe the work was continued with the sides of the ditch braced by lumber provided for the purpose, and that such mode of construction was the reasonably safe method of conducting such work. The prejudicial effect of such proof is obvious, for it tended to impress the jury with the belief that at the time of plaintiff’s disaster, the sides of the trench being unsupported or braced, the work was being performed in an unsafe and negligent manner. It is now well established in this State, that precautions adopted succeeding a casualty to avert its recurrence, are not to be interpreted as admissions of prior negligence and therefore admissible. Mahaney v. Railway, 108 Mo. 1. c. 200, 18 S. W. 859; Bowles v. Kansas City, 51 Mo. App. 1. c. 419; Mitchell v. City of Plattsburg, 33 Mo. App. 1. c. 560.

Nor should statement of a witness that other peo*39pie, who dug such ditches, always braced them, have been received. The question of the negligence of defendant was to be determined by the jury from the conditions which the evidence demonstrated as attending the work at the time plaintiff suffered the injury. Such reply of the witness was the mere expression of an opinion and taken together with his further testimony, that when braces were omitted from excavations in such clay soil, the work was likely to cave and' fall in, was but a conclusion on his part and it was the exclusive province of the jury to deduce inferences and conclusions from the facts in evidence. Nor was the'latter declaration properly received as the testimony of an expert. The witness disclaimed such character and the subject was not of that nature from which it was apparent that the jurors were not capable of drawing conclusions from the facts established. Benjamin v. Railway, 133 Mo. 1. c. 288, 34 S. W. 590; Dammann v. St. Louis, 152 Mo. 1. c. 200, 53 S. W. 932; Lee v. Knapp, 155 Mo. 1. c. 641, 56 S. W. 458; Goble v. Kansas City, 148 Mo. 1. c. 477, 50 S. W. 84; Koenig v. Railway, 173 Mo. 1. c. 721, 73 S. W. 637; Edwards v. Paving Co., 92 Mo. App. 1. c. 226; Nash v. Dowling, 93 Mo. App. 156.

The plaintiff testified that he remained at the City Hospital two days and then left not receiving good treatment and nothing was being done for him. Defendant sought to introduce the testimony of a hospital physician who had treated him, and upon his reply that the knowledge he had of plaintiff’s condition was derived in course of his treatment by the witness as the attending physician, he was excluded as disqualified by statute. The section invoked plainly enjoins that to render a physician or surgeon incompetent to testify the information sought to be elicited must have been not only acquired from the patient while attending him in a professional capacity, but also must have been essential to enable him to prescribe for such patient as a physician. R. S. 1899, sec. 4659. As the burden of *40establishing the disqualification is placed on the objecting party, it devolved on respondent to prove the facts disqualifying the witness and the present record is meagre and incomplete in such respect and while the facts rendering the witness incompetent may have existed, they do not sufficiently appear. Bowles v. Kansas City, 51 Mo. App. 416; James v. Kansas City, 85 Mo. 20.

Judgment reversed and cause remanded.

Goode, J., and Blcmd, P. J., concur in the result, the former being of the opinion that proper expert testimony, if tendered would have been admissible.