Morton v. Railway Co.

• Citation: 20 S.W.2d 34
• Decision Date: 13 September 1929
• Docket Number: No. 27714.,27714.
• Parties: DEE MORTON v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

20 S.W.2d 34

DEE MORTON v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.

No. 27714.

Supreme Court of Missouri. Division One.

September 13, 1929.

Appeal from Webster Circuit Court. — Hon. C.H. Skinker, Judge.

AFFIRMED.

E.T. Miller, Mann & Mann and Phil. M. Donnelly for appellant.

(1) The court erred in permitting Dr. Latimer to answer the hypothetical question submitted by counsel for respondent requiring him to state upon the facts hypothecated whether, in his opinion as a doctor, the injuries hypothecated were caused by the striking of respondent by the agent of appellant, over the objections of the appellant. The question clearly invaded the province of the jury. Castanie v. Railroad, 249 Mo. 192; Atkinson v. School of Osteopathy, 240 Mo. 355; Smart v. Kansas City, 208 Mo. 202; Taylor v. Railroad, 185 Mo. 256. (2) The court erred in permitting Dr. Mott to answer the hypothetical question submitted by counsel for respondent over the objection of the appellant, and in allowing Dr. Latimer to answer the hypothetical question already mentioned for the reason: (a) That all the necessary facts were not included in the hypothetical question. Powell v. Railroad, 255 Mo. 420; Holton v. Cochran, 208 Mo. 314; Meily v. Railroad, 255 Mo. 567; Riley v. City of Independence, 258 Mo. 671. (b) For the further reason that the hypothetical question assumes facts to exist which were not in evidence at any time in the trial of the case and is an exaggeration of the facts. Root v. Railroad, 195 Mo. 348; Hicks v. Railway, 124 Mo. 115; Russ v. Railway, 112 Mo. 48. (3) The court erred in giving respondent's Instruction 1. (a) Because said instruction is not hypothecated on the evidence and there is no evidence for the jury upon which to base the same. Modlagl v. Foundry Company, 248 Mo. 587; Wentz v. Railroad, 259 Mo. 450; Rawlings v. Railroad, 175 S.W. (Mo.) 935; Degonia v. Railroad, 224 Mo. 564; Sheurer v. Rubber Co., 227 Mo. 347; Reardon v. Railway, 215 Mo. 105. (b) Because it singles out certain facts from the evidence, justifying a finding for plaintiff, without including all the facts. Andrew v. Linebaugh, 260 Mo. 623; Smith v. Bank, 147 Mo. App. 461; Fine v. Public School, 39 Mo. 59; Jones v. Jones, 57 Mo. 138, (c) Because it is a plain unwarranted comment on a detached portion of the evidence relied on by plaintiff in regard to the merits of the evidence. Littig v. Heating Co., 292 Mo. 226; Burton v. Holman, 231 S.W. (Mo.) 634; State v. Adkins, 225 S.W. (Mo.) 982; Harrington v. Dunham, 273 Mo. 430; Rice v. Transit Co., 216 S.W. (Mo.) 751. (4) The respondent did not make a case to go to the jury, and the court erred in refusing appellant's peremptory instruction at the conclusion of respondent's evidence and again at the conclusion of all of the evidence. (a) Because respondent's evidence did not discharge the burden of proof that rested upon him to show by legitimate evidence that injuries of which he complains were caused at the hands of appellant's special officer, but, at most, his evidence merely leaves it subject to speculation or conjecture as to whether his disability and sufferings are referable to the treatment he received at the hands of the officer. Cluett v. Electric L. & P. Co., 220 S.W. (Mo.) 867; Goransson v. Mfg. Co., 186 Mo. 300; Trigg v. Land & Lumber Co., 187 Mo. 227; Fritz v. Railroad, 243 Mo. 62; Hamilton v. Railroad, 250 Mo. 714; Hartman v. Railroad, 261 Mo. 279; Swearingen v. Railroad, 221 Mo. 644; Coine v. Lounge Co., 222 Mo. 488; Kidd v. Lead & Zinc Co., 204 S.W. 286; McGarth v. Transit Co., 197 Mo. 104; Fuchs v. St. Louis, 167 Mo. 635. (b) Because the evidence invokes a familiar rule that the plaintiff is fated to failure if his evidence fails to show that the damages were produced from a cause for which the defendant is liable, rather than from one for which the defendant is not liable. In this case the rule is invoked because the evidence discloses as much reason for believing that the injuries and suffering of which plaintiff complains came from some other cause and more so, in fact, than that it came from any treatment at the hands of respondent's agent. Epperson v. Telegraph Co., 155 Mo. 346; Hamilton v. Railroad, 300 S.W. (Mo.) 787. (c) Because there is no substantial evidence of treatment at the hands of appellant's agent sufficiently rough or severe to cause the injury from which plaintiff is suffering, if any, as disclosed by the evidence. There must be substantial evidence, and not a mere scintilla of evidence, rising above speculation, conjecture or guesswork, to entitle a plaintiff to go to the jury. Near v. Railroad, 261 Mo. 80; Dutcher v. Railroad, 241 Mo. 137. And this is a case where the court, in determining the demurrer, ought to look to the character of the evidence of appellant. Ferber v. Bolt & Nut Co., 185 Mo. 311; Osborn v. Railroad, 179 Mo. App. 255; Link v. Hathaway, 143 Mo. App. 509.

Fred W. Lewis, E.L. Rayborn and Haymes & Dickey for respondent.

(1) The hypothetical question asked Dr. Latimer was proper and the trial court ruled rightly when it overruled defendant's objection thereto. The question did not invade the province of the jury. It related to a question of technical science and knowledge of which experts only can speak intelligently and it is not error to permit them to testify that the injury caused plaintiff's present condition. O'Leary v. Steel Co., 303 Mo. 363; Rock v. Keller, 312 Mo. 458; Schulz v. Ry. Co., 4 S.W. (2d) 768; Coy v. Dean, 4 S.W. (2d) 839; Busch & Latta Paint Co. v. Cons. Co., 310 Mo. 443; State ex rel. Am. Car & F. Co. v. Davis, 313 Mo. 681. Even though said question was an invasion of the province of the jury defendant did not object to the question on that ground. Objection not made at the trial to admission of evidence will not be considered on appeal. Edmondson v. Hotels Statler Co., 267 S.W. 617; Scheipers v. Ry. Co., 298 S.W. 54; Burton v. Ry. Co., 176 Mo. App. 14; McCaffery v. Ry. Co., 192 Mo. 144. (2) All necessary facts were included in the hypothetical questions asked Dr. Mott and Dr. Latimer. But had any facts been omitted the questions would still have been proper. (a) Because these questions were selected from a series of questions asked these experts. They had been questioned regarding all facts relating to plaintiff's condition. Riley v. Independence, 258 Mo. 671; Standefer v. Fleming, 298 S.W. 134; Crockett v. Ry. Co., 243 S.W. 902; Pyle v. Light & Power Co., 246 S.W. 986. (b) Because even if all facts were not incorporated in the hypothetical questions as originally propounded but were later the subjects of inquiry and did not change the experts' opinions, they would be proper. Standefer v. Fleming, 298 S.W. 134; Frost v. Business Men's Assn., 246 S.W. 632. (c) Because Dr. Latimer and Dr. Mott were testifying directly from their own knowledge as to plaintiff's condition; they were the doctors who treated him. Under such circumstances questions even in hypothetical form need not contain all the facts and circumstances. Millirons v. Ry. Co., 176 Mo. App. 39; Beurskens v. Dunham, 193 S.W. 857; Franklin v. Ry. Co., 188 Mo. 533; Robinson v. Ry. Co., 103 Mo. App. 110. (d) Because if any necessary facts were omitted it was the duty of defendant objecting to the hypothetical question to state what facts were not included in such question, and when it failed to do so, such objection was not good — it was too general. Moreover the facts which a hypothetical question must cover rests to a large extent in the sound discretion of the trial judge. Ridenour v. Mines Co., 164 Mo. App. 576; Burton v. Ry. Co., 176 Mo. App. 14; Frost v. Business Men's Assn., 246 S.W. 632; Jackson v. Ry. Co., 232 S.W. 753; Bennington v. Ry. Co., 201 Mo. App. 483; Lawson on Evidence, 166. (e) The hypothetical questions did not assume the existence of facts which were not in evidence. Each fact was proven by direct and positive testimony. This was more than was required by law, for the rule is that in asking hypothetical questions counsel may assume any state of facts which the evidence tends to establish and not merely such facts only as have been testified to by express or direct statements to that effect. Frost v. Business Men's Assn., 246 S.W. 628; Hicks v. Ry. Co., 124 Mo. 115; O'Neill v. Kansas City, 178 Mo. 91. (3) Plaintiff's Instruction 1 was correct. (a) There was ample evidence on which to base it. An assault — willful — malicious in nature — committed in an angry and rough manner on an unconscious man by defendant's special officer, whose admitted duty it was to protect passengers on said train from being molested, disturbed or injured was proven. Such assault, the details thereof and the manner in which it was committed, were testified to by witnesses and was acted out by witnesses before the jury. And the injuries resulting therefrom were conclusively proven. Sturgis v. Ry. Co., 228 S.W. 865; Neuer v. Street Ry. Co., 143 Mo. App. 402; Tanguer v. Elec. Ry. Co., 85 Mo. App. 28; VanHoefer v. Taxi Cab Co., 179 Mo. App. 591. (b) It singled out no particular facts. It included all material facts. The gist of the action and the issue on which the case was submitted was whether or not plaintiff was assaulted by being kicked, pushed or struck in the back and thrown into the toilet by defendant's employee and by reason of said assault was injured. All necessary facts pertaining to those issues were contained in the instruction. Harrington v. Ry. Co., 217 S.W. 881; Robinson v. St. Joseph, 97 Mo. App. 503; Hunter v. Ry. Co., 213 Mo. App. 233; Gardner v. St. Ry. Co., 167 Mo. App. 605; Chenoweth v. Sutherland, 129 Mo. App. 431; Meily v. Ry. Co., 215 Mo. 567. (c) The instruction is not a comment on the evidence. It instructs the jury just what the evidence must show before a verdict can be returned for plaintiff. An assault must be proven; an assault of the kind and committed in the manner alleged in the petition. The instruction could not have...