142 Mo. App. 567 | Mo. Ct. App. | 1909
This is a suit for damages accrued to plaintiff through personal injuries occasioned by the negligence of the defendant. Plaintiff recovered and defendant appeals. It appears plaintiff was injured while standing in the street in order to board a street car, by the defendant’s servant negligently backing his
Upon a trial before a jury, plaintiff recovered a verdict for $5000. Thereafter, upon consideration of the motion for a neAV trial, the court indicated that unless a portion of the damages recovered was remitted, a neAV trial would be awarded. Thereupon plaintiff entered a remittitur of $1500, and judgment was given for the plaintiff in the amount of $3500.
Neither defendant nor his chauffeur gave testimony at the trial. In fact, there Avas no proof introduced other than that for the plaintiff. Plaintiff and other eye-witnesses detailed the circumstances of her injury about the same. All of the testimony tends to prove a case of negligence on the part of defendant. It Avas certainly gross negligence for defendant’s chauffeur to suddenly move the automobile backAvard Avith
It is argued, first, that the court should have declared plaintiff guilty of negligence as a matter of law, and directed a verdict for the defendant. That is to say, it is argued that plaintiff’s careless conduct directly contributed to her injury in such a manner as to justify the court in declaring as a matter of law that she ought not recover. This argument is without merit. When more than one inference can be fairly drawn from the facts as to the care or want of care on the part of the plaintiff, the question of contributory negligence is for the jury. [7 Am. and Eng. Ency. Law (2 Ed.), 456; Dougherty v. Mo. Pac. Ry. Co., 97 Mo. 647.] It was certainly proper in this instance to refer the question to the jury. It may be remarked in this connection, however, that the facts present a case where the plaintiff is about as nearly without fault as any which we have had occasion to review. It appears that plaintiff, a lady about thirty years of age, was on her road from Union Station to her home. She had taken her position only a moment before at the usual stopping place of the street cars in order to enter the car when it stopped. The street car was then approaching and in near proximity to her. Plaintiff’s attention was directed to the approaching car, as was entirely proper. The automobile was not coming toward her, but on the contrary, was standing at rest against the pavement, eight or ten feet away. Plaintiff had certainly no reason to suppose that it would be run backwards upon her without warning, by the careless act
It is argued the court should have directed a verdict for the defendant because it does not appear the chauffeur was acting in the line of his duty as a servant of the defendant at the time the injury was inflicted. In making this assignment of error, counsel have certainly overlooked the fact that plaintiff testified the defendant told her that the automobile was his automobile and that the chauffeur operating the same was his chauffeur; in other words, his servant. It appears that the defendant called upon plaintiff after her injury and had some conversation with her respecting the same, etc. He suggested, too, that he would furnish a physician to attend her. This she declined, however, having employed a physician on her own account. Plaintiff testified that during this conversation defend-,, ant told her that it was his automobile which inflicted the injury, and that the chauffeur operating the same was his chauffeur. This testimony is not controverted, for, as stated, neither defendant, his chauffeur, nor any other witness in behalf of defendant1 gave testimony in the case. The master is liable for all injuries to person or property caused by the negligence of his servant if the act which results in the injury is done while the servant is acting within the scope of his employment
Defendant complains of plaintiff’s instruction number one and says it submitted facts to the jury not in evidence. The portion of the instruction complained of is as follows: “And if the jury find from the evidence, that on said day defendant owned, and by his servant was operating the automobile mentioned in the evidence,” etc. The criticism levelled against this portion of the instruction is to the effect that there is no proof in the record tending to show the automobile belonged to the defendant or that it was being operated by his
“Q. Did you see the defendant, Mr. Lambert, there, after you were hurt? A. Yes, sir.
“Q. Did he come to your house to see you? A. Yes, sir.
“Q. What did he say about its being his automobile and chauffeur? A. He told me it was his automobile and his chauffeur.”
This testimony is sufficient in that behalf and it was properly submitted to the jury by the instruction referred to.
At a prior term of court, and before a judge other than the one presiding at the trial of the cause, defendant moved the court to appoint one or more competent physicians to examine the extent of plaintiff’s injuries under an order of the court. The court overruled this motion and defendant excepted thereto. At the time the court overruled the motion, the judge then presiding, remarked: “I do not believe this court has any power to make such an order and I will never do it.” It is argued here that the judgment should be reversed for the reason the court erred in overruling the motion referred to, and in not appointing a commission of surgeons to examine the extent of plaintiff’s injuries. The power of the court to make and enforce an order for the personal examination of the injured party by affixing a proper penalty, must be taken as established in this State as it is in many others. The question of the power of the court in this behalf is no longer open to controversy in Missouri. [Owens v. Railway, 95 Mo. 169, 178; Fullerton v. Fordyce, 121 Mo. 1.] However, such an examination is a matter of discretion with the trial court and an exercise of its discretion thereabout will not be interfered with on appeal unless it is manifestly abused. [Owens v. Railway, 95 Mo. 169; Fuller
The judgment should be affirmed. It is so ordered.