44 S.W. 1053 (Mo. 1898), Fullerton v. Fordyce

Citation:44 S.W. 1053, 144 Mo. 519
Opinion Judge:Macfarlane, J.
Party Name:Fullerton v. Fordyce et al., Receivers of the St. Louis, Arkansas and Texas Railway Company, Appellants
Attorney:Sam H. West and W. H. Miller for appellants. Wilson Cramer for respondent.
Case Date:June 14, 1898
Court:Supreme Court of Missouri

Page 1053

44 S.W. 1053 (Mo. 1898)

144 Mo. 519



Fordyce et al., Receivers of the St. Louis, Arkansas and Texas Railway Company, Appellants

Supreme Court of Missouri, First Division

June 14, 1898 [*]

Appeal from Scott Circuit Court. -- Hon. H. C. O'Bryan, Special Judge.


Sam H. West and W. H. Miller for appellants.

(1) The court erred in giving its first and third instructions to the jury, which were given on its motion. These instructions assume, as a matter of law, and affirmatively assert that the hole was unsafe and dangerous, and its existence was negligence, instead of submitting the question for the determination of the jury as an issue of fact. Whether the hole was unsafe or dangerous, and whether there was negligence in not repairing it was a question of fact for the jury to determine. The defendants were entitled to have the jury pass upon the question of fact. Buswell, Personal Injuries [1 Ed.], sec. 93; 2 Thompson on Trials [1 Ed.], sec. 2295; Matthews v. Railroad, 26 Mo.App. 89; State v. Wheeler, 79 Mo. 366; Wilkerson v. Thompson, 82 Mo. 328; Bank v. Crandall, 87 Mo. 212; Childrey v. Huntington, 12 S.E. 536; James v. Railroad, 107 Mo. 480. (2) In the fourth instruction, the court assumes that the plaintiff had bodily pain and suffering and suffered mental anguish and inconveniences and also assumes that his hip and spine were injured in the accident. These were questions of fact for the jury. 2 Thompson on Trials [1 Ed.], sec. 2295; Wilburn v. Railroad, 36 Mo.App. 215; Railroad v. Coates, 15 Am. and Eng. R'y Cases, 265; Railroad v. Sykes, 96 Ill. 162; Rolling Co. v. Morrissey, 18 Am. and Eng. R'y Cases, 47; Hawes v. Stockyard Co., 103 Mo. 60. (3) The sixth instruction based also on the assumption that plaintiff had suffered injury, told the jury that if his pain and suffering was enhanced and injuries aggravated by his own imprudence or want of ordinary care, that he could not recover for such increase or aggravations. This is erroneous. It was the duty of plaintiff to have taken proper care of himself such as an ordinarily prudent person would have done under similar circumstances. Sandwich v. Dolan, 34 Ill.App. 199. (4) The verdict is excessive and should have been set aside on defendants' motion. 2 Thompson on Trials [1 Ed.], secs. 2299-2300; Britton v. Railroad, 51 N.W. 276; Goetz v. Ambs, 27 Mo. 28; Sawyer v. Railroad, 37 Mo. 240; Honeycutt v. Railroad, 40 Mo.App. 674; Furnish v. Railroad, 102 Mo. 438; Hanlon v. Railroad, 104 Mo. 381; Railroad v. Hall, 78 Tex. 657; Gurly v. Railroad, 104 Mo. 211; Burdich v. Railroad, 123 Mo. 240. (5) In no case should expert or opinion testimony be received except it be based upon facts clearly established. 2 Rice on Ev. 358; Keyser v. Railroad, 66 Mich. 390; Van Wycklen v. Brooklyn, 118 N.Y. 430; Russ v. Railroad, 112 Mo. 45; U. S. v. Pendergast, 32 F. 201; Clark v. State, 12 Ohio 499; 2 Rice on Ev. 328; Hopt v. Utah, 120 U.S. 437. (6) Expert or opinion evidence is admitted as an exception to the rule and only as a matter of necessity and should always be received and considered with great caution. Rogers on Exp. Test., sec. 199; Darrigan v. Railroad, 52 Conn. 285; Faulkner v. Hendy, 79 Cal. 265; Grigsby v. Water Co., 40 Cal. 405; Hayes v. Wells, 34 Md. 513; Clark v. State, 12 Ohio 499; Purifier Co. v. Cheatham, 4 Dill. 448. (7) Expert witnesses ought to be selected by the court and should be disinterested and unbiased as well as learned and skillful. Fullerton v. Fordyce, 121 Mo. 10; Rogers Exp. Test., pp. 182, 183, People v. Millard, 53 Mich. 63; Faulker v. Hendy, 79 Cal. 265; Grigsby v. Water Co., 40 Cal. 405. (8) The opinions of experts should not be given any considerable weight unless it is shown that they are specialists or peculiarily qualified to testify as to the matters about which they propose to express an opinion. Rogers Exp. Test., secs. 91-103; 62 Miss. 405; 14 Gray, 335; People v. Millard, 53 Mich. 63; Railroad v. Huntley, 38 Mich. 537; Fayette v. Chesterville, 77 Me. 28. (9) It was an abuse of the discretion of the court in permitting plaintiff to reopen his case and place upon the witness stand the physicians composing the commission, and especially is that apparent when coupled with the language of the court, which was calculated to give undue credence to the testimony of such commission and to inflame the prejudices of the jury.

Wilson Cramer for respondent.

(1) The hole in the platform was there from four days to two weeks according to the evidence of defendants' witnesses, and from three weeks to two months according to plaintiff's witnesses, and it is shown that the station agent, who was also conductor of the train, was present when the hole was made. Notice to the agent was notice to the principal. (2) There is no evidence or suggestion of prejudice or misconduct of the jury. They swore on their voir dire that they were not prejudiced, and there is nowhere in the record an intimation of misconduct on their part, nor of any unfair argument by plaintiffs' counsel. Griffith v. Railroad, 98 Mo. 176; Hanlon v. Railroad, 104 Mo. 392; Drain v. Railroad, 86 Mo. 574; Gorham v. Railroad, 113 Mo. 423. (3) The only new point presented on this appeal is the propriety of the court's ruling in permitting the experts, who examined plaintiff by order of court, to testify after the close of defendants' evidence. When the case was here before, this court intimated that such an examination by experts ought to be made. Before the retrial of the case...

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