*1 Municipal a Wells, Appellant, v. Jefferson, G. Walter Light Company, Cor and Missouri Power & Corporation, (2d)W. 1006. poration. One,
Division November 1939.
David W. Peters and Scott Peters for appellant.
John Bond for of Jefferson.' 0. *3 Irwin, Light Bushman & Buchanan for Missouri Power & Com- pany. $10,000 damages personal HYDE, is an action C.- This condition a defective alleged have been caused
injuries, all close of therein. At the along car tracks Avenue street Clark Missouri for defendant evidence, directed a verdict the court City against defendant Plaintiff’s case Light Company. Power & finding defendant. jury and was for the to the its submitted judgment entered. appealed from Plaintiff has November, Service Commission The Missouri Public by ordinance, granted permission City of defendant with the consent car Light street service Company & to discontinue to defendant Power Prior to the time instead. bus service to establish street car tracks to remove the injured, the had commenced *4 Avenue. any on Clark had not removed tracks some its streets but of concerning di assignment the an of error brief contains Plaintiff’s course, Light Of Company. Power & for defendant rected verdict duty with liability depend upon whether its would this defendant’s Louis Public Service existed. v. St. reference to the track still [Burow assignment However, (2d) this Cо., 1092, 100 S. W. 339 Mo. 269.] it, points in of either the briefed; further mention is made is no not is cited which considered argument, and no case and authorities or an abandonment of this any facts. This constituted similar state of (2d) 914; Homan Owens, 1061, 93 W. assignment. 338 Mo. v. [Clay (2d) 61, W. Further Co., 334 Mo. 64 S. Mo. Pac. Railroad v. 617.] error) the on city (withоut prejudicial more, properly if won the course, of contributory negligence, plaintiff, negligence and issues of is, there against either defendant. It rights could have no further concerning taking over of the unnecessary go into facts fore, to the City salvage by the fоr otherwise. car tracks the street briefed, go only error, to which are assignments of Plaintiff’s evidence, and instructions, improper admission of certain cross- by City plaintiff’s (challenged find the examination. We statement assignments dismiss) considering by motion to to be sufficient for the briеfed, motion to is overruled. appeal and the dismiss assigns receiving “in in a mere Plaintiff error evidence the record of City Jefferson, of of which not even minute the council of the did any action, question removing tracks import final on the of streetcar city streets, Fеbruary 1934;” receiving 3, dated and “in the agreements by of oral into and between of evidence entered officers Light City Company, the Missouri Power & of defendant the concerning city’s of Jefferson the removal streetcar tracks from the Kolkmeyer authority assignments, streets. Plaintiff cites as on these City City Jefferson, App. 678; Co. v. 75 Mo. J. of & of C. Likes v. Rolla, App. 296, 645; S. W. Openchain-Boyer Mo. Co. v. Village (Mo. 376; App.), (2d) of Mercer 17 S. W. Eureka Fire Hose Mfg. City Portageville (Mo. (2d) 513; of App.), Co. v. S. W. Lively Webb City (Mo. App.), cases, v. 106 S. 517. These (2d)W. in plaintiff’s brief, question cited all rule of whаt record the kind of (of necessary city council) action of it is make to lia to establish bility against city money pay the evidence on contracts. Certain held for purpose requirements insufficient this the because of of 1929; Revised Section Statutes but that does not mean that any evidence, it would be for other purpose. inadmissible The com all plained here, question of went to the of whether there was lia bility Light of Company the defendant Power not be could & grounds judgment of City reversal the favor of the. because nonliability City there was no such contention of in this tort action, admittedly City (whether jointly) the was liable alone or anyone if Neither the of liable. could admission this be evidence against prejudicial plaintiff, held on presented what is here for re view, plaintiff Light as between the Comрany, Power & both assignment against because abandoned his error action the of the trial in directing Light court a verdict for the Power & Com pany, negligence contributory the negli because issues of gence against jury. him were decided the negligence which charged against City
The was submitted deep that “wide, permitted ruts or holes had been form on both inside and outside of each of” the of a track; rails street car presence wide, deep “that said of said street ruts or holes ren ordinary use, dered it unsafe and that the defendant Jefferson, negligently permitted them to remain therein.” It was also submitted that “the dropped wheels automobile *5 wide, deep into some of these or holes ruts in said street that in and endeavoring extricate suddenly to it therefrom it came out and he great with and was forсe violence hurtled across said street and col pole with large lided a near the The curb. answer of both defendants general plea contained a denial a contributory negligence. and of running Avenue, north on that Clark evidence showed
Plaintiff’s the street near the center of car track south, and there was a street just track, beginning track, of main side the the with a switch west Street, an east and street. Miller intersection with south of the than south of north of this intersection was narrower Clark Avenue to to necessary traffic turn somewhat it, for southbound so that it was was with bitu- paved Clark Avenue near this intersection. the east on both sides away to some extent which worn asphalt, minous was evidence, there According to of these tracks. rails rails, from to five inches ruts, the that were four were next to holes condition deep, and it had been in that to six inches wide and four Avenue City’s was that months. The evidence Clark two or three intersection; space a that there was thirty feet wide south of this was rail the west and feet wide travel between twelve and one-half level with curb; that rails of the tracks were about the the west along in street; pavement the and that the holes the the surface of only -making “merely depth, “an inch or in the two” rails were rough” enough “to the of the car.” places, deep not deflect course that, (after the had not been April tracks
Plaintiff said on months) 7:00 a. of cars for several at operation used for street m:., driving go Avenue to work. He was he drove south on Clark twenty-five thirty he per miles hour.” He said that “between him; that the man he knew on the sidewalk and waved wheel saw get it gоt rut; out;” of his in a that he “tried to but that “the car telephone post,” hit a render- past car went the switch block and ing a blow on head. him unconscious from his He had used Clark every day going to work and trucks over it Aven-ue almost drove years. in familiar with condition his for several He “was the of work occurred,” “knew point the the where the accident the street at way you Plaintiff said: “There is holes were there.” no could you go you get unless pass . . . after the intersection one wheel “A in a one man could take track;” but of his witnesses said: his westеrly time and drive down the side Clark Avenue not come anywhere car the inter- contact with tracks between street point Avenue and the the accident section of Miller Clark where occurred, parked were no cars next to the curb.” providing there A for the thаt he saw car before it witness testified wrong intersection; that it on the of the street reached the side away him; wrong that it “on the side feet track, . the track after it came altogether . . never touched my anybody wheel;” he sight;” that “could not see behind the through pole, curb line down that it “crashed this followed the my carrying company, that the the insurance hit car.” Plaintiff said fixing witness’s car. car, paid on his bill for this concerning instructions, assignment error, thus Plaintiff’s “That and 5 points and authorities: Instructions stated in his *6 245 5, and served Instruction repetitions of 6, 7 and 8 were conflicted, and to such plaintiff of contributory part on the negligence emphasize Plaintiff’s brief evidence.” on the make a comment an as to extent be, this would claimed to conflict is what the nowhere states there However, note that we that claim. an аbandonment of amount to “ordinary duty as plaintiff’s 4 states a in that Instruction is conflict that he requires 5 care,” while Instruction “reasonable care” and in error degree care.” This is highest of “exercise the of measure the correct complain, because fаvor, which cannot of he A. v. C. highest degree of care.” duty “the was his [Baranovic Co., 322, (2d) 114 S. W. 342 Mo. Moreno 1043.] authorities, plain points Although not mentioned his erroneous that argument that “Instruction printed states tiff’s oridinary using care to duty ‘the of imposes upon plaintiff it driving’ (and further which he is in a strеet over discern defects knew of said you plaintiff evidence that says) ‘and if from the believe ordinary care of using same, the exercise danger place and attempted it, plaintiff that known of part on his could have ” using care’ reasonable point, withоut pass or drive over said over then that argument states negligence). Plaintiff’s (this would be necessary” plaintiff than greater upon a burden imposed “this in the defects all hazards to discern “he was not bound at because to discern ordinary care in effort streets; only use hе is bound to duty using “the stating had However, plaintiff that the them.” driving the defective over ordinary defects,” and-that care to discern ordinary by the exercise of knew or place (of plaintiff which defect negligence, care was known) using reasonable care could have without all hazards to discern obviously “bound to does not mean that he was be overruled. contention must defects in the streets.” This issue of overemphasizing the Concerning complaint of it, rule on our contributory negligence by giving instructions several to whether ordinarily judgment of the trial court as is to follow the Where the prejudicial. be overemphasis or not there was such as to ground, we new trial on that a motion for trial court has sustained Co., 343 Railroad usually v. Alton affirmed its order. have [Arnold 343 Mo. 1092; Thompson, 1049, (2d) Pearrow v. Mo. S. W. in or elabora Nеvertheless, “repetition (2d) 121 W. 811.] is not law in different instructions proposition tion of same remanding a cause ordinarily reversing grounds sufficient Rath v. Co., supra; upon appeal.” v. Alton Railroad [Arnold the trial Knight (Mo.), (2d) 682, and cases Since S. W. cited.] from such against effect prejudicial court decided the contention of in view of speed, repetition, evidence as to his since showing very strong knowledge doing, his what he was is not degree part, we over highest to the of care on his as exercise rule this contention here. remaining assignment “pеrmitting
Plaintiff’s of error is coun sel for persist defendants to in their efforts to show that suffering syphilis, during their cross-examination of the plaintiff. Drs. Enloe and the Light Counsel defendant Power & Company offered to show on cross-examination of both doctors who *7 plaintiff (both treated by of whom were called plaintiff) as witnesses plaintiff being that for treated this disease both before and after the accident. plaintiff’s complaints One of injury the result of his pains was continuous in his head. Plaintiff said that he never had a headache before the accident but “have had it ever since have it now.” He also that he went Hospital (St. testified to Barnes Louis) October, (six treatment 1934 accident); months after the ‘‘ ’’ and when any any asked if kind, he had disease of he answered: say “I couldn’t if I did or didn’t.” Plaintiff also said that he had not been able injury; to wоrk since his and that “the doctors advise long my me not to work as as head testimony bothers me. From the doctor, the first plaintiff who treated after appears the accident it that this doctor had him also treated for some prior time to the ac cident; that he him continued to treat for several months after the accident; and injury that the was not treating the sole reason for him. court The ruled: “The can question, doctor answer this as to whether he subsequent treated him injury something to else injury, besides the but he don’t need to tell what it was.” Both said, doctors that a syphilitic might bring condition about headaches. The second began doctor to treat September, 1934, about him sent Hospital. Barnes He testified that he made a Wassermann test but was permitted not to answer as to what it showed. Instead against of error plaintiff, think unduly we that the error inwas limit ing the cross-examination plaintiff’s doctors. Plaintiff was seek ing to recover for his condition after theory the accident on the that it was due accident, to the and that he was unable still to work be cause of his by condition caused the accident. Defendants were en titled to jury have the know the whole truth about his condition. The nature and extent of this condition probable and its causes were a proper subject of privilege given by cross-examination. The Sec 1731, tion 1929, Revised personal Statutes is to the patient (not a privilege doctor) by voluntarily and is waived calling the doc testify tor behalf condition, by about his voluntary testimony own condition, about his his treatment and what his it; doctors advised calling about one doctor waives it at least alb as to plaintiff, others who treated a in personal injury suit, after injury. time of his As to what amounts to waiver and its extent Pennsylvania see Epstein v. Co., 1, Railroad 250 699; Mo. 156 W. S. Long, 199, State v. 257 748; Harvey Mo. 165 W. (Mo. S. Michaels v. App.), 735; 179 W. Harvey (Mo. S. McPherson v. App.), 183 S. 653;W. (Mo. App.), Priebe v. 605; Crandall 187 S. W. Blanken- 840; (Mo.), 187 W. Weissman baker v. St. L.-S. F. Railroаd Co. Wells, 82, 400; Jennings W. National Life & Ac Mo. 267 S. v. v. 777, (2d) 226; see Co., Ins. 226 Mo. 46 S. W. also App. cident Clearly Evidence, 201, chap. 84, plain secs. Wigmore on 2380-2391.] after the privilege tiff in this case as to his condition waived Dalton, Bradley judgment is affirmed. accident its canses. The ., concur. CC foregoing Hyde, C., adopted opinion
PER CURIAM: The opinion judges All the as the of the court. concur. M. Appellant, v. E. F. Robinson, Heiser, Heiser,
Ethel Lela W. (2d) Zook, Trustee, W. Paul. 1020. O. C. S. W. One, Division November 1939. *8 Adams appellant.
O. J.