Connor v. Kansas City Rys. Co.

• Decision Date: 06 April 1923
• Docket Number: No. 23198.,23198.
• Citation: 298 Mo. 18,250 S.W. 574
• Parties: CONNOR v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

250 S.W. 574

298 Mo. 18

CONNOR v. KANSAS CITY RYS. CO.

No. 23198.

Supreme Court of Missouri, Division No. 1.

April 6, 1923.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Cora M. Connor against the Kansas City Railways Company. Judgment for plaintiff, and defendant appealed to the Court of Appeals, where the case was transferred to the Supreme Court. Reversed and remanded.

Gabriel & Conkling, of Kansas City, for appellant.

Rogers & Yates, of Kansas City, for respondent.

JAMES T. BLAIR, J.

This case was transferred to this court because one of the judges of the Kansas City Court of Appeals deemed the decision contrary to previous decisions of this court. Section 6 of the Amendment of 1884 to article 6 of the Constitution of Missouri.

The negligence charged was that the car was violently and in an unusual manner moved and jerked in such way as to throw respondent, a passenger, therefrom. It is alleged that as a result respondent was so injured that "her entire body, including her head, arms and legs and all of the bones, muscles, nerves, vessels and ligaments thereof were bruised, contused, sprained, torn, lacerated and injured, and that she sustained a severe concussion of her spine, and that her internal organs were bruised, contused, torn, lacerated and injured, and that because of said injuries she was rendered permanently sick, sore, sad, lame, weak, nervous, dizzy, and she has suffered and will in the future continue to suffer intense pain and mental anguish and has lost and will in the future continue to lose her natural rest and sleep, all to her damage, etc." The answer was a general denial. The verdict was for $10,000. The trial court required a remittitur of $5,000, and judgment was rendered for $5,000.

Appellant's assignments of error do not draw in question the sufficiency of the pleadings or evidence on the issue of negligence, and a statement of the facts as to this is unnecessary. In the course of his testimony Dr. Skoog said that an examination disclosed bat all of respondent's facial muscles "are somewhat impaired in function. There is a well-defined diminution of ability for expression, that is the defined facial muscles impaired functionally." A motion to strike out this because it was outside the issues was overruled. Re also testified, over a like objection, that "in the general nervous system and mental condition we also find a diminution of functions," and that respondent was slow in answering questions and frequently wept and gave "other evidences of emotional disturbances." Dr. Boyer, over a like objection, was permitted to testify that respondent was irrational at times; that "she was extremely nervous, that does not embrace it;" that she "has a traumatic neurosis," which, he testified, "is a nervous condition that—hysteria would be a factor of traumatic neurosis, epilepsy, insanity, Graves' disease, * * * chorea, pulse agitans—all are factors, are resultants of traumatic neurosis." On motion the court struck out the enumeration of the factors and results of traumatic neurosis, but allowed the testimony that respondent was suffering from traumatic neurosis to remain in the record. The witness subsequently testified that traumatic neurosis was "manifested * * * by insanity, hysteria," and this was stricken out. He then testified respondent's symptoms which indicated traumatic neurosis were that she "talks incoherently, she cannot talk to you intelligently, she cries when you talk to her, she complains of various things, pain, weakness, loss of appetite, numbness; she complains of various things. Are the principal factors I see." A motion to strike out as beyond the issues was overruled. Over the same objection the witness testified respondent's condition was permament; that traumatic neurosis is progressive and that respondent would get worse. A motion to discharge the jury because respondent shed tears at times during her testimony was overruled. All that is shown by that part of the record on which appellant founds its complaint in this court is that respondent wept on two occasions during her testimony. The motion to discharge recites other things that are not found elsewhere. Respondent's testimony occupies nearly forty pages of the record.

Appellant also complains of respondent's instruction 1 on the ground that, it is contended, it authorized recovery if respondent was found to be a...