Wellman v. Metropolitan Street Railway Company

• Citation: 118 S.W. 31,219 Mo. 126
• Parties: ADA WELLMAN v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Decision Date: 31 March 1909
• Court: United States State Supreme Court of Missouri

118 S.W. 31

219 Mo. 126

ADA WELLMAN v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

March 31, 1909

Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.

Affirmed on condition.

John H Lucas and R. T. Railey & Son for appellant.

(1) Assuming that plaintiff was entitled to recover under the evidence, yet the amount returned by the jury is so outrageously excessive, unjust and oppressive as to shock the conscience of any reasonable person, and must have been brought about by passion or prejudice or a misunderstanding of the legal effect of the testimony on the part of the jury in respect to plaintiff's alleged injuries. There was no legal evidence adduced at the trial which either proved or tended to prove the plaintiff's condition, after the alleged accident, in relation to her womb, ovaries, fallopian tubes and their surroundings, had any connection with defendant's alleged negligence. On the contrary, in respect to the matters above mentioned, the verdict of the jury was based purely upon speculation and conjecture. The burden of proof devolved upon plaintiff to show to a reasonable degree of certainty that defendant's alleged negligence was the proximate cause of her alleged diseased condition in respect to her womb and its surroundings, and having failed to do so, she has recovered in this case about ninety-five per cent of her damages purely upon speculation and conjecture, and without any legal evidence on which to base the same. A verdict thus returned cannot stand the test of judicial criticism. Garard v. C. & C. Co., 207 Mo. 256; Reynolds v. Railroad, 189 Mo. 421; Chilton v. St. Joseph, 143 Mo. 199; Russell v Columbia, 74 Mo. 488; Albin v. Railroad, 103 Mo.App. 318; Schwend v. Railroad, 105 Mo.App. 534; Walker v. Railroad, 106 Mo.App. 326; Wilbur v Railroad, 110 Mo.App. 698; Ballard v. Kansas City, 110 Mo.App. 398; Haas v. Railroad, 111 Mo.App. 716; Ford v. Des Moines, 106 Iowa 94; Hardy v. Railroad, 89 Wis. 183; Strohm v. Railroad, 96 N.Y. 306. (2) When the jury retired to consider the case, there was before the mind of each juror a cleancut statement from Mr. Boyle to the effect that Sullivan's evidence was a myth, and in his opinion there was no such witness, as he had never seen him or had the opportunity of cross-examining him. Would the average juror, who had a high appreciation of plaintiff's counsel, have ignored the language used in determining what weight to give Sullivan's testimony? We think it too clear for argument that by reason of Mr. Boyle's statements the jury was so prejudiced as not to have considered the testimony of witness Sullivan, or it could not have returned a verdict for plaintiff on the merits of the controversy. The evidence of Sullivan was not only material, but directly corroborated the conductor in regard to the main facts in the case. The only way to require counsel to keep within the record, and not derive an unfair advantage in a case of this character by the foregoing conduct, is to remand the cause for a new trial. Smith v. Tel. Co., 55 Mo.App. 635; Enser v. Smith, 57 Mo.App. 596; Boggess v. Railroad, 118 Mo. 338; 1 Thompson on Trials, secs. 264, 266; Stratton v. Nye, 63 N.W. 928; Andrews v. Railroad, 71 N.W. 377; A. L. & L. S. Co. v. May, 71 N.W. 69; Sutton v. Railroad, 73 N.W. 995; Railroad v. Kellogg, 76 N.W. 464; Rudiger v. Railroad, 77 N.W. 171; Taylor v. Railroad, 79 N.W. 18; Hennies v. Vogel, 87 Ill. 242; Magoon v. Henniker, 41 N.H. 317; Tucker v. Henniker, 41 N.H. 317; Martin v. State, 63 Miss. 505; Rudolph v. Landerlien, 92 Ind. 34; Perkins v. Burley, 15 A. 21.

Guthrie & Smith, Boyle & Howell and J. K. Stickney for respondent.

(1) Plaintiff's evidence shows that the verdict in this case was not excessive; and defendant has waived any right to complain that the verdict was based on an issue not sufficiently established by the evidence. (a) There was substantial evidence that plaintiff's condition was the result of defendant's negligence. In considering this issue, the question before this court is not whether the defendant offered evidence which might have tended to overcome in whole or in part the effect of plaintiff's evidence, but the question is whether the plaintiff has made a substantial showing that her condition at the time of the trial was the result of the injuries which she received because of defendant's negligence. Alabama, etc., Co. v. Hill, 93 Ala. 518; Armstrong v. Town of Ackley, 71 Iowa 79; King v. City of Oshkosh, 75 Wis. 520; Stephenson v. Flagg, 41 Neb. 373; Stein v. Kaster, 67 N. J. L. 481; Lindeman v. Brooklyn, etc., Co., 69 A.D. 442; Field v. N. Y., etc., Co., 109 A.D. 831; Glasgow v. Railroad, 191 Mo. 363; Sharp v. Kansas City, 114 Mo. 100; Hanlon v. Railroad, 104 Mo. 391; McRae v. Railroad, 125 Mo.App. 562. (b) But the question of whether or not there was a sufficient showing that plaintiff's condition was the result of defendant's negligence is not properly reviewable in this court. Defendant raised no objection in the trial court to the sufficiency of plaintiff's evidence on this issue. When plaintiff attempted to show that defendant's negligence was the cause of plaintiff's injuries, defendant objected to this proof on the ground that it was a question for the jury. It made no motion to strike out any of plaintiff's evidence; it asked no instructions withdrawing this issue from the jury; on the contrary, it asked and the court gave an instruction submitting to the jury the converse of this issue. Frankenthal v. Assurance Co., 76 Mo.App. 15; Kenefick v. Society, 205 Mo. 311; Matonsek v. Catholic Union, 192 Mo. 596; Englehart, etc., Co. v. Burrell, 66 Mo.App. 122. (2) The alleged misconduct in argument by plaintiff's counsel is not shown by the record; and on the showing made by the affidavits it was harmless, and was withdrawn. (a) Before an appellant can present such a question to an appellate court, it must have objected and excepted to such an argument, and to any adverse rulings on the part of the court, and it must have preserved the same in its bill of exceptions; and this was not done in this case. It is not sufficient for it to attempt to do so by affidavits filed in support of a motion for a new trial, and including these affidavits in its bill of exceptions. (b) Such a comment would be harmless. (c) It appears to have been immediately retracted, apologized for and reprimanded. (d) No further objection was offered, no request was made for the discharge of the jury and no criticism was raised as to the sufficiency of the reprimand. (e) The trial judge in his discretion refused to grant a new trial.

OPINION

WOODSON, J.

This suit was begun in the circuit court of Jackson county by the plaintiff against the defendant, to recover the sum of $ 15,000 damages for alleged injuries received by her, caused through the alleged negligence of defendant by prematurely starting one of its cars while she was in the act of boarding the same for the purpose of becoming a passenger thereon. The trial resulted in a verdict and judgment for the plaintiff in the sum of $ 7,000. From that judgment defendant duly appealed to this court.

The petition, upon which the case was tried, omitting formal parts, reads as follows:

"Plaintiff for her cause of action against defendant says that now and at all of the times hereinafter mentioned defendant was a corporation duly organized and existing according to law and engaged as a common carrier of passengers for hire, operating lines of street railway in and upon the streets of Kansas City, Missouri, and vicinity. Among its said lines is and was at all of the times herein referred to a line called the Vine Street line, running upon Woodland avenue from a point north of Thirty-ninth street to Forty-third street, all being public streets in Kansas City, Missouri. On October 30, 1904 plaintiff attempted to board one of defendant's south-bound cars on said Vine Street line at Thirty-ninth street and Woodland avenue for the purpose of taking passage thereon, said car being stopped at that point for the purpose of receiving and discharging passengers. While plaintiff was in the act of getting upon said car, and while she was in a position of peril, all of which was known or by the exercise of due care should have been known to defendant, defendant negligently started said car, and plaintiff was, by the negligent starting of said car, and by the negligent act of defendant's conductor in trying to catch plaintiff as the result of said negligent starting of said car, thrown against parts of said car, and to the ground, and greatly injured.

"As the result of said negligence plaintiff received a severe shock to her nerves and nervous system, her legs were bruised, cut and injured from below her knees to her ankles her back and shoulders were bruised, sprained and injured; her left side was bruised and injured, there was a rupture or breaking of some part of the abdominal wall, and she received severe internal injuries, particularly in the pelvic region, causing her to have peritonitis, and causing an adhesion of parts of her uterus, ovaries and fallopian tubes to each other and to the bowels and pelvic and abdominal walls; causing the ovaries to be enlarged and made sore, producing abscesses therein and about the fallopian tubes; causing prolapsus and retroflection of the uterus; causing her pains in said affected parts, and in her head, back, shoulder and legs. Said injuries are permanent, and plaintiff has suffered and will continue to suffer therefrom great bodily pain and mental anguish. By reason of said injuries plaintiff has been rendered an invalid, and she will continue to be such as long as she lives, her ability to bear children has been destroyed, and...