Fullerton v. Fordyce

Citation44 S.W. 1053,144 Mo. 519
PartiesFullerton v. Fordyce et al., Receivers of the St. Louis, Arkansas and Texas Railway Company, Appellants
Decision Date14 June 1898
CourtUnited States State Supreme Court of Missouri

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

Affirmed.

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 defendants asked the court to appoint a commission for that purpose, and plaintiff was required to submit to a physical examination, but defendants declined to place the experts on the stand. Plaintiff then asked the court to admit their evidence and it was done. In this the court committed no error. The admission of evidence is a matter resting in the sound discretion of the court. Taylor v. Cayce, 97 Mo. 242; State v. Buchler, 103 Mo. 203; McFarland v. Act. Ass'n, 27 S.W. 436; Griffith v. Railroad, 98 Mo. 176. (4) In actions for personal injuries conduct on the part of the plaintiff which increases or aggravates the injuries, may be shown in mitigation. 1 Sutherland on Dam. [2 Ed.], sec. 155; Boggess v. Railroad, 118 Mo. 328. (5) Hypothetical questions put to an expert must embrace all of the facts bearing upon the subject which the evidence tends to prove, but whether the questions are proper is for the court to determine, and not for the jury. The credit to be given to the testimony of experts as of other witnesses is for the jury. Thompson v. Ish, 99 Mo. 179. Whether a witness who is offered as an expert is qualified to testify as such is a preliminary question for the court to decide. Hartman v. Muehlbach, 64 Mo.App. 565; Thompson v. Ish, 99 Mo. 160; Mut. Fire Ins. Co. v. Alvord, 61 F. 752. (6) It has been decided time and again by this court, that the order in which evidence shall be received is a matter resting in the discretion of the trial court. McFarland v. Acc. Ass'n, 27 S.W. 440; Burns v. Whelan, 52 Mo. 520.

OPINION

Macfarlane, J.

This is an action to recover damages on account of personal injuries received by plaintiff through falling into a hole in the platform of defendant at its station at New Madrid, Missouri. The ground of the action is negligence in not maintaining the platform in a reasonably safe condition, by reason of which, on leaving a train at said station, upon which he was a passenger, plaintiff fell into a hole and was injured. The answer was in substance a general denial and a plea of contributory negligence. The evidence tended to prove the negligence charged and the injuries sustained thereby. The trial resulted in a verdict and judgment for plaintiff for $ 13,500, from which defendants appealed.

This is the second appeal. The result of the first will be found reported in volume 121 of the Missouri Reports, at page 7. A number of questions disposed of on the first appeal have been reargued, but on these questions we see no reason for changing the views expressed on the former hearing and will not reconsider them.

I. After the case had been remanded, in pursuance of a suggestion of this court, defendant applied to the circuit court for the appointment of a commission of competent and disinterested physicians to make a physical examination of plaintiff with a view of ascertaining the character and extent of his injuries. In compliance with the application the court appointed Drs. Harris, Tomlinson and Fraser to make the examination. Dr. Harris declining to act, an examination was made by the other two. In the trial the parties examined as expert witnesses, physicians called by themselves respectively, but neither party called as witnesses those who had made an examination of plaintiff under the order of the court, until after defendant had closed his defense. At this stage of the proceedings plaintiff was allowed, over defendant's exception to introduce and examine these witnesses. In granting the leave the court remarked in the presence of the jury: "The Supreme Court has indicated in this case that it would like to have this court appoint a commission; I have done so in response to that, and I will permit the commission to testify." Defendants now insist that the court committed prejudicial error in permitting plaintiffs to examine these witnesses out of their regular order, and that the remarks of the court made in the presence of the jury were improper and prejudicial. There was no reversible error in permitting plaintiff to examine these witnesses out of their regular order. The circuit courts have a very broad discretion in regard to the order of admitting testimony, and their discretion will not be interfered with unless it clearly appears to have been abused. There was no abuse of...

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