Castanie v. United Rys. Co.

• Citation: 155 S.W. 38,249 Mo. 192
• Parties: CASTANIE v. UNITED RYS. CO.
• Decision Date: 28 March 1913
• Court: United States State Supreme Court of Missouri

155 S.W. 38

249 Mo. 192

CASTANIE v. UNITED RYS. CO.

Supreme Court of Missouri, Division No. 1.

March 28, 1913.

EVIDENCE (§ 506) — SUBJECTS OF EXPERT TESTIMONY — MATTERS FOR JURY'S DETERMINATION.

In a passenger's action against a street car company for personal injuries, where the company denied that the accident alleged occurred and produced evidence tending to support its denial, the admission of a hypothetical question asked a physician as to whether he ascribed plaintiff's condition to the injury described in such question was improper, since his answer in the affirmative amounted not merely to a statement that the injuries might or could have been produced by such an accident, but to a statement that the supposed accident did cause the injury, which was a matter to be determined by the jury.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Action by Leona Castanie against the United Railways Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This is an action by the public administrator of St. Louis, as the curator of plaintiff, for personal injuries alleged to have been sustained by her on the 20th of September, 1907, while a passenger on defendant's street railway, which she alleges was stopped in obedience to a signal from her and was then caused to be negligently and suddenly started forward while she was in the act of alighting, thereby throwing her to the pavement and severely injuring her left hip bone, lacerating the tissues around the same, and shocking her spine and nervous system. The defense was: (1) A general denial; (2) contributory negligence. On the trial there was evidence tending to prove the allegations contained in plaintiff's petition. There was conflict in the evidence as to the nature, extent, and curability of her injuries; and defendant also introduced testimony in denial of the occurrence of the injury. The jury returned a verdict for $12,000, from which defendant has appealed, assigning for errors the refusal of the court to sustain its objection to the testimony of two physicians, and that the verdict is grossly excessive.

Elmer C. Adkins and T. E. Francis, both of St. Louis (Boyle & Priest and Morton Jourdan, all of St. Louis, of counsel), for appellant. Charles Fensky, of St. Louis (Arthur G. Moseley, of St. Louis, of counsel), for respondent.

BOND, J. (after stating the facts as above).

In the view we have taken of this case, it is only necessary to refer to the exceptions preserved as to the hypothetical question put to Dr. McElwee. This question, after embodying a suppositional statement of the testimony adduced on behalf of plaintiff in reference to the occurrence of the injury, was permitted to be asked by the court so as to conclude with the following inquiry, to wit: "Q. I ask you the question, Do you ascribe that present...