MacDonald v. Metropolitan Street Railway Company

• Decision Date: 13 April 1909
• Parties: MARY MACDONALD v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

118 S.W. 78

219 Mo. 468

MARY MACDONALD v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

April 13, 1909

Appeal from Jackson Circuit Court. -- Hon. H. L. McCune, Judge.

Affirmed.

John H Lucas and Chas. A. Loomis for appellant.

(1) There was no evidence that the death of deceased was directly or proximately caused or produced by the injuries sustained in the accident. (2) The court erred in refusing instructions numbered three, four and nine, asked by defendant. Hicks v. Railroad, 46 Mo. 309; Shearman & Redfield on Negligence (5 Ed.), sec. 28; Brown v. Railroad, 20 Mo.App. 227; 1 Sutherland on Damages, secs. 23 and 29; Saxton v. Railroad, 98 Mo.App. 501; Christy v Hughes, 24 Mo.App. 275; Banks v. Railroad, 40 Mo.App. 464; Waller v. Railroad, 59 Mo.App. 426; Bradford v. Railroad, 64 Mo.App. 475; Lawrence v. Ice Co., 119 Mo.App. 331; Foley v. McMahon, 114 Mo.App. 442; Ray on Negligence, pp. 133 and 134; American Brewing Ass'n v. Talbot, 111 Mo. 683; Webb's Pollock on Torts (Enlarged Am. Ed.), pp. 45 and 46. (3) The court erred in permitting plaintiff's counsel to read to the jury from medical books, same being hearsay and secondary evidence. 1 Greenleaf on Evidence, sec. 52 and sec. 440; 16 Cyc. 12, 13 and 14 and cases cited in notes 78 and 88; Bailey v. Kreutzman, 141 Cal. 519; People v. Wheeler, 60 Cal. 581; Gallagher v Railroad, 67 Cal. 13; Lilly v. Parkinson, 91 Cal. 655; People v. Golderson, 76 Cal. 348; Fox v. Peninsula White Lead Co., 84 Mich. 876; Marshall v. Brown, 50 Mich. 148; People v. Millard, 63 Mich. 63; People v. Vanderhoof, 71 Mich. 158; Boehringger v. Richardson Med. Co., 9 Tex. Civ. Rep. 284; Wharton on Evidence, sec. 665; Rogers on Expert Testimony, sec. 179; Burt v. State (Tex.), 40 S.W. 1000; Wright v. State (Tex.), 44 S.W. 513. (4) The court erred in overruling defendant's objections to hypothetical questions propounded by plaintiff's counsel which assumed facts not proven, and which did not state or present to the witnesses all of the facts proven, or all the facts which the witnesses should know and consider in answering the questions. Senn v. Railroad, 108 Mo. 143; Culbertson v. Railroad, 140 Mo. 35; Mammerberg v. Railroad, 62 Mo.App. 563; Heinzel v. Railroad, 182 Mo. 555. (5) The court erred in giving instruction 4 asked by plaintiff, and in admitting evidence offered by plaintiff in support thereof, proving or tending to prove that notwithstanding the injuries received might not be such as to primarily cause or produce death, yet if they were sufficient to or did aggravate the then diseased condition of the deceased, in such a manner as to hasten his death, or shorten his life, then defendant would be liable for his death. And the court erred in giving instruction 4 asked by plaintiff, in effect telling the jury that defendant was liable if the injury only hastened his death. Jackson v. Railroad, 87 Mo. 422; 1 Thompson on Negligence, sec. 153; Gray v. McDonald, 28 Mo.App. 488. (6) The court erred in refusing instructions 10 and 12 asked by defendant. If injury result which may reasonably be attributable to two or more causes, for one of which defendant is liable, and for the other of which defendant is not liable, plaintiff must prove with reasonable certainty that the cause for which defendant is liable did in fact produce the injury. Smart v. Kansas City, 91 Mo.App. 586; Young v. Railroad, 113 Mo.App. 636; Browning v. Railroad, 106 Mo.App. 729; Fuchs v. St. Louis, 167 Mo. 620; Deamet v. Storage Co., 121 Mo.App. 92; Warner v. Railroad, 178 Mo. 131. (7) Error was committed in the giving of instructions 1, 2, 3, 4, and 5 asked by plaintiff. The instructions enlarge the issues presented by the pleadings between plaintiff and defendant, and were erroneous for that reason. Roscoe v. Railroad, 202 Mo. 576; Davidson v. Railroad, 211 Mo. 361; Beave v. Railroad, 111 S.W. 58.

A. L. Cooper and Karnes, New & Krauthoff for respondent.

(1) Appellant cannot be heard to say that the result of such an injury could not have been by it foreseen or expected. Foley v. McMahan, 114 Mo.App. 448; Smith v. Railroad, L. R. 6 C. P. 20; Hoeppe v. Southern Hotel Co., 142 Mo. 388; Graney v. Railroad, 140 Mo. 98; Miller v. Railroad, 90 Mo. 394; Kellogg v. Railroad, 26 Wis. 223; Harrison v. Electric Light Co., 195 Mo. 629; Lawrence v. Ice Co., 119 Mo.App. 331; 21 Am. and Eng. Ency. Law, 488; Drum v. Miller, 135 N.C. 204; Sickinger v. Mfg. Co., 129 Mo. 590; Beauchamp v. Mining Co., 50 Mich. 163; Railroad v. Buck, 96 Ind. 346. (2) If Macdonald died sooner than he would have died had he not been injured by the railroad, then it was the proximate cause of his death. This suit is based on Sec. 2864, R. S. 1899. Lynch v. Railroad, 112 Mo. 441; Higgins v. Railroad, 197 Mo. 312; Jackson v. Railroad, 87 Mo. 442; Gray v. McDonald, 28 Mo.App. 477; Felton v. Fidelity Co., 174 Mo. 256; Freeman v. Accident Ass'n, 156 Mass. 351; Strode v. Railroad, 197 Mo. 621. (3) Use of medical books proper, and court's directions as to same. State v. Soper, 148 Mo. 217; State v. Klinger, 46 Mo. 230; 3 Wigmore on Evidence, p. 1700; Yates v. Railroad, 40 L. R. A. 558; 17 Ency. Law and Proc., 421; 1 Greenleaf on Evidence (15 Ed.), sec. 440; Life Ins. Co. v. Ellis, 89 Ill. 576; Heiss v. Lowery, 122 Ind. 233; Howell v. Railroad, 147 Ind. 274; State v. Wood, 53 N.H. 484; Collin v. Simpson, 5 C. & P. 73. (4) Opinion of experts may be given. Gutridge v. Railroad, 94 Mo. 468; Eyerman v. Sheehan, 52 Mo. 223; Goins v. Railroad, 47 Mo.App. 173; Gavisk v. Railroad, 49 Mo. 274; 1 Greenleaf on Evidence (15 Ed.), sec. 446.

OPINION

LAMM, P. J.

Defendant appeals from a judgment in plaintiff's favor for $ 5,000. She is the widow of John L. Macdonald, injured while a passenger on defendant's car on defendant's cable road, October 26, 1902, while running round a curve. In about eight months and a half afterwards he died. There is no question but that he was injured and by defendant's negligence. Plaintiff's theory is that such injuries caused his death. Defendant's is contra. The trial was long. The issues were threshed out below closely and with ability. The briefs take a wide range. The instructions were many. However laborious a task, we shall undertake to condense the voluminous record without omitting vital matter.

After allegations immaterial to any question made here, the petition alleges:

"That in rounding said curve the car aforesaid in which the said John L. Macdonald was riding came to a sudden and violent stop, which was caused either by the negligent and careless condition in which the appliances used by said defendant for going around said curve were allowed to remain, or by the negligent and careless manner in which the gripman discharged his duty in managing and controlling said car, but it was either one or the other, or both, as plaintiff believes and alleges, and she is ignorant whether it was the one or the other. By said sudden and violent stoppage of said car, said John L. Macdonald was thrown violently forward and down, by which he was greatly injured, and which injuries so received by him caused his death, which occurred on the 13th day of July, 1903."

The abstracted answer is a general denial. Plaintiff contends the trial answer had a plea of contributory negligence, but she files no counter or additional abstract. Not only so, but no issue of contributory negligence was submitted to the jury, and that feature, on any view of the case, is by-matter.

Save on the medical testimony, there is little or no dispute about the facts. The case made is this:

Judge Macdonald was between sixty-five and sixty-six years old when he died. He came to Kansas City from St. Paul, Minnesota. In St. Paul (as in Kansas City) his profession was that of a lawyer in full practice, though he had served in Congress and on the bench. The winter before moving from St. Paul, he was bothered with lumbago. Lumbago is an ailment of a rheumatic kind, indicated by pain in the small of the back. The occasion of his change from St. Paul to Kansas City, was, primarily, to find a milder climate to rid himself of lumbago or prevent its becoming chronic, if lurking; secondly, to better his business outlook. With these ends in view, he visited the South, seeking a location in Louisiana, Texas, and Arkansas. About a year prior, he had gone to Hot Springs and spent a few days at the baths there. In his exploring trip south, he again visited Hot Springs and took a few baths. This was in 1897, and in the fall of that year he settled in Kansas City. From that time until his injury, five years later, he was apparently free from lumbago or any other rheumatic trouble. He is described in the record as leading an active life, as being "a rugged, strong man," an "industrious man," weighing about one hundred and eighty pounds, about five feet ten inches in height, "broad shouldered," "muscular," of an "athletic type," temperate, with a good appetite but restraining it, "a vigorous, strong man," "a very temperate man," "a well man," positive but of a jolly turn and a hard worker. This, up to the time of his injury.

On the 26th of October, 1902 (in prime health to all appearance) he, with his wife, Mary, was returning from church. Suddenly, while his car was going without check at, presumably, ordinary speed around a curve, the gripcar in the train was thrown from the track, the "trailer" on which he was riding was partly derailed, its front end thrown from the track, and he was violently projected ahead two or three feet, sidewise, against the immovable framework of the car stove. The cause of all this is left quite dark. One witness, speaking of the suddenness and force of the stop, said it was the same as if the car "had struck a house," another ...