Porter v. Hetherington

• Decision Date: 30 June 1913
• Citation: 158 S.W. 469
• Parties: PORTER v. HETHERINGTON.
• Court: Missouri Court of Appeals

158 S.W. 469

PORTER v. HETHERINGTON.

Kansas City Court of Appeals. Missouri.

June 30, 1913.

1. APPEAL AND ERROR (§ 1002) — EVIDENCE CONSIDERED.

On appeal the court must accept that evidence which most strongly supports the verdict.

2. MUNICIPAL CORPORATIONS (§ 705) — USE OF STREETS — CARE REQUIRED — AUTOMOBILE DRIVERS.

Under Rev. St. 1909, § 8523, requiring persons operating automobiles along public streets to use the "highest degree of care of a very careful person" to avoid injury to pedestrians, a chauffeur approaching two women who were walking in the street ahead of him is required to stop to avoid striking them, if he has opportunity to do so and he cannot safely pass them.

3. MUNICIPAL CORPORATIONS (§ 706) — USE OF STREETS — ACTIONS FOR DAMAGES — INSTRUCTIONS.

An instruction as to the duty of a chauffeur to stop his car, if he could have seen the plaintiff, which does not add thereto "by the exercise of due care," is not prejudicial where the chauffeur admitted that he saw the plaintiff in time to have stopped before striking her.

4. NEGLIGENCE (§ 141) — INSTRUCTIONS — CONTRIBUTORY NEGLIGENCE — BURDEN OF PROOF.

Where the answer in an action for personal injuries alleged contributory negligence, an instruction that the answer had set up this defense and that the burden of proving it was on defendant, was proper.

5. TRIAL (§ 191) — INSTRUCTIONS — ASSUMING FACTS — MEASURE OF DAMAGES — PERSONAL INJURIES.

Where there is sufficient evidence to justify the submission of the permanency of personal injuries to the jury, an instruction that if they believed any of the plaintiff's injuries were permanent they should consider that in assessing damages is not erroneous as assuming the permanency of the injuries.

6. EVIDENCE (§ 548) — EXAMINATION OF EXPERTS — FACTS FORMING BASIS OF OPINION.

In an action for personal injuries to a woman, where the testimony of a physician showed that his opinion was based not merely upon her statements to him, which he was not allowed to repeat to the jury, but also upon his observation and examination, although he made no internal examination, he can testify that he thought her womb was injured.

7. APPEAL AND ERROR (§ 1050) — HARMLESS ERROR — EVIDENCE — PERSONAL INJURIES — CONFORMITY TO PETITION.

Where a petition for personal injuries received by a woman alleged internal injuries to the womb, and the evidence showed no other internal injury, testimony that the physician at the time he first examined the plaintiff thought there was some deep internal injury, is not prejudicial.

8. EVIDENCE (§ 550) — EXAMINATION OF EXPERTS — QUESTIONS BASED ON TESTIMONY OF OTHERS.

Where the facts are not controverted, it is proper to ask an expert witness for the defendant to base an opinion as to whether plaintiff's condition could have been caused in the manner claimed by her, upon the evidence in the case; it appearing that he has heard it all.

9. EVIDENCE (§ 547) — EXAMINATION OF EXPERTS — BASIS OF OPINION — DISCRETION OF COURT.

If the right to ask questions in that form is a matter within the discretion of the court,

there was an abuse of his discretion in refusing to permit the defendant to ask such questions after the plaintiff has asked, over defendant's objection, her witnesses for their opinion on the same subject without hypothetically stating the facts, since the court cannot exercise its discretion in favor of one party and against the other.

10. EVIDENCE (§ 550) — EXPERT TESTIMONY — CAUSE AND EFFECT — PERSONAL INJURIES.

In an action for damages, where the plaintiff claims she received permanent injuries to her womb, and the evidence showed that no hemorrhage resulted at the time of the injury, questions asked the defendant of an expert witness, who testified to the plaintiff's condition as to what kind of a blow it would require to cause such an injury and whether such a blow would produce a hemorrhage, was proper.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by Lena Porter against Ellery M. Hetherington. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

McCune, Harding, Brown & Murphy and Spencer F. Harris, all of Kansas City, for appellant. John C. Nipp and John L. Wheeler, both of Kansas City, for respondent.

TRIMBLE, J.

This suit is for personal injuries sustained by reason of being knocked down and rolled over by an automobile driven by defendant's negro chauffeur who was taking the automobile home pursuant to defendant's commands.

Plaintiff and her sister were walking home on the right-hand side of Grand avenue going south and had reached a point between Twenty-Fifth and Twenty-Sixth streets where the sidewalk ended close to a rock crusher. When the two ladies reached the end of the sidewalk, they stepped out into the street, which was paved with asphalt and, keeping near the west curb, continued on their way south. Just after stepping from the wayside, to avoid the dirt or dusty path where the sidewalk did not exist, the ladies looked back up the avenue and saw defendant's automobile coming, but it was out in the center of the street, and as they were near the west curb there was no danger whatever from it, so they proceeded on their way south. There was a space of 24 feet between this west curb and the west street car track. At the time the ladies looked behind them, the automobile was perhaps 150 feet away and apparently in the middle of the street, and between the ladies and the west rail of the street car track was a space of at least 20 feet. In a moment the automobile, without warning or noise of any kind, swerved out to the curb and struck the ladies, knocking them down and rolling them over on the pavement until the automobile struck the curb, ran up over it and against a trolley pole and stopped. The first the ladies knew of the car being out from the center of the street and upon them was when it struck them. When the automobile stopped against the pole it was headed in a southwest direction.

The rubber tire of the left front wheel was off. During the day it had been taken off, owing to a puncture, and the wheel was "riding on the rim"; that is, the metal flange on the felloe of the wheel was resting on the asphalt, and, as the weather was warm, this was a little soft, and the rim was sinking into the asphalt making a mark and rendering the machine somewhat more difficult to guide properly. The steering gear was also worn. The defendant had ordered the chauffeur to take the machine home in that condition. The chauffeur, as he struck the pole, was screaming, "He had no business sending me out with this machine; it was in no condition to be on the street." And immediately after striking the pole said, "If I hadn't run into that pole I would be going yet."

The next day after the injury the defendant went with his chauffeur to the place where the collision occurred and had the details of the accident related to him. Afterwards, in talking to the mother of plaintiff, defendant said, speaking of his automobile: "I have owned it for eight years and never had an accident with it. It is very easily controlled. I could stop it within five feet. He [meaning the chauffeur] must have lost his head." The accident occurred on June 3, 1911, and on the 13th of June, when the chauffeur's month was up, the defendant refused to pay him, giving as his reason for refusing that it was his fault that caused the trouble with the ladies.

It was in evidence by the chauffeur that the automobile was not going over five miles an hour; and there were no obstructions between the automobile and the plaintiff to prevent the chauffeur from seeing and warning her. That at that rate the car could have been stopped in five feet. The negligence charged was that the servant in charge of the vehicle failed and neglected to use the highest degree of care that a very careful person would use under like or similar circumstances in that there was a failure and neglect to warn plaintiff of the approach of said car or to stop said car after he saw or could have seen plaintiff's danger; that he operated said motor vehicle with the machinery thereof in a defective condition, making it difficult to control said car; that he failed to keep a lookout for pedestrians and turned said car out of its course and ran it against plaintiff. The answer was a general denial and a plea of contributory negligence. The jury returned a verdict for $900 in favor of plaintiff. Defendant appealed.

Complaint is made of plaintiff's instruction No. 4, but we are unable to see any merit in the objections thereto. It did not assume any fact at all, much less a fact in dispute. Nor was it objectionable because it ignored the question of the reasonableness of the time in which the chauffeur could have warned plaintiff or stopped the car. The chauffeur swore he was going upgrade, not over five miles an hour, and could have stopped in five feet. Later on he testified that he saw the women when they stepped from the sidewalk into the street and that they started across the street; that he turned to the left but a street car coming from behind caused him and the women to turn towards the right; that when he saw the women in front of his car they were 20 feet away and he attempted to pass them by going between them and the curb and in doing so struck them. In other words, he saw the women in front of him still going south but going diagonally down the street and approaching the curb, and, although he could have stopped the car in five feet and allowed the women to reach the curb in safety, he attempted to pass them on the right by going between them and the curb and in doing so struck them. Consequently, by his own admission, he saw them in a reasonably sufficient time to have warned them or to have stopped his machine before striking them.

He says he did warn them, but admits he did not stop. Plaintiff says he neither warned her nor stopped, and, on appeal, we...