O'Neill v. Kansas City

• Decision Date: 25 November 1903
• Citation: 77 S.W. 64,178 Mo. 91
• Parties: O'NEILL v. KANSAS CITY.
• Court: Missouri Supreme Court

77 S.W. 64

178 Mo. 91

O'NEILL v. KANSAS CITY.

Supreme Court of Missouri, Division No. 1.

November 25, 1903.

MUNICIPALITIES — DEFECTIVE STREETS — INJURY TO PEDESTRIAN — EVIDENCE — EXPERT WITNESSES — HYPOTHETICAL QUESTIONS — SUFFICIENCY — OBJECTIONS — EXCESSIVE DAMAGES.

1. In an action for personal injuries, plaintiff testified that one end of a loose board of a sidewalk flew up and struck her over the right ovary, the blow throwing her down; that when she reached home, immediately thereafter, there was a dark spot over the ovary, where the board struck her, which by the next morning became large and black. The physician who treated her testified "that there was contused wound in the right abdominal region, immediately over the right ovary." Held to warrant the assumption in a hypothetical question that the blow caused a part of the right side to swell, and left the ovary bruised and contused.

2. An objection to a hypothetical question asked an expert, that the facts assumed were not to be found in the evidence, did not raise the objection that the question left out facts shown in the evidence.

3. Where, in an action for personal injuries, a physician testified that plaintiff was suffering from ovaritis, a hypothetical question asked him for the purpose of obtaining his opinion as to whether the diseased condition was the result of the blow received in the accident, which assumed that plaintiff had been, prior to the accident, in good health; that at the time of the accident she received a blow over the right ovary; that the blow caused a part of the right side to swell, and left the ovary bruised and contused; that immediately thereafter she suffered acute pain in the region of the right ovary; that ever since that time she has suffered pain in that organ; that since the accident she has suffered with nervousness — was sufficient.

4. Where a person not employed by a city testified in an action against a city for personal injuries sustained by reason of a defective sidewalk that he found the planks in the sidewalk loose at both ends, and the stringer at one end very much decayed, his evidence as to his making repairs of the sidewalk, volunteered in response to a question as to the condition in which he found the sidewalk, was not prejudicial to the city, especially where the defect in the walk was proven beyond controversy by several witnesses, and there was almost no testimony to the contrary.

5. Plaintiff (39 years of age), before the injury, was strong and active, and had never known diseases peculiar to women, while after the accident she suffered much pain and was frequently ill. At the time of the trial, four years after the injury, she suffered from chronic inflammation of the ovary, with serious consequences to her whole system. Her physician and those appointed by the court to examine her before the trial were of the opinion that she would never recover. Held, that a verdict of $7,500 would not be set aside as excessive.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Mary O'Neill against Kansas City. From a judgment for plaintiff, defendant appeals. Affirmed.

L. E. Durham and R. J. Ingraham, for appellant. F. F. Rozzelle, Frank P. Walsh, and John G. Park, for respondent.

VALLIANT, J.

Plaintiff recovered a judgment for $7,500 against the defendant city as damages for personal injuries sustained by her in consequence of the defective condition of a wooden cross-walk in one of the public streets. The plaintiff's evidence tended to prove as follows: The earth had washed away from the cross-walk on both sides to a depth of about three feet. The boards of which the walk was constructed had become loose, and the stringers on which the boards were laid were rotten. The cross-walk had been in this condition two or three months. The plaintiff, in company with another woman, was crossing the street on that cross-walk, her companion going first and the plaintiff following. Her companion, who was a large woman, weighing 200 pounds, stepped on one end of one of the loose boards, and caused the other end to fly up and strike the plaintiff. The board which struck her was a foot wide, 2 inches thick, and 15 feet long. It struck her just over the right ovary, and she was thrown down by the blow. When she got home her knee was bleeding, and there was a dark spot over the ovary, where the board struck her, which by the next morning had become large and black. She was a married woman, had had several children, and was 39 years old. The testimony tended to show that her injuries were very serious and painful, and her suffering was still enduring at the time of the trial.

As grounds for reversal of the judgment, appellant presents three propositions: (1) The court erred in permitting an expert witness to answer a certain hypothetical question; (2) the court erred in allowing a witness who was not in the employ of the city to testify that he made repairs on the cross-walk shortly after the accident; (3) the amount awarded as damages is excessive, evincing prejudice or passion.

1. The hypothetical question to which objection is made was propounded to a physician who had examined her just before the trial, which was four years after the accident, and who had testified that he found her suffering with ovaritis. The question, the objections, and the rulings thereon are as follows: "Doctor, suppose that on the 9th day of June, 1896, this lady you have examined, Mrs. O'Neill, was 39 years of age, and up to that time she had not been sick, was in good health, her last sickness being an attack of bilious malaria along in the year 1888 or 1889; that intervening between that time she was able to perform her household duties, and was in good health, and had not any pains in her body, and on the 10th day of June, 1896, she met with an accident in which she received a blow over the ilium, on the right side, over the organ of the right ovary; that this blow caused a part of the right side to swell, and left the ovary bruised and contused; that immediately thereafter she suffered acute pain in the region of the organ of the right ovary, and ever since that time has suffered pain in that organ, and not upon the left side; that prior to that time she did not suffer from nervousness, but since that time she has suffered with nervousness; that her nervousness has continued, and has become very serious; that she has become so nervous at times that it has resulted in nervous prostration; that she has come on in periodic times; that she was confined to her bed for four months; that she still suffers pain in the region of this bruised place that I have detailed to you — was that ovaritis the result of the blow I have indicated? (Mr. Hadley, counsel for the defendant, objects to the question, as no such facts are found in the evidence.) Court: Objections are overruled. Mr. Frank P. Walsh, counsel for the plaintiff: If Mr. Hadley, counsel for the defendant, will suggest any evidence that has not been covered by the question, or any evidence submitted by hypothesis that had not been given in the evidence, I will amend my question to conform thereto. Court: Mr. Hadley, if you have any amendments to offer, you will please make them. Mr. Hadley: I do not desire to do so at this time. (To which action of the court in overruling said objection the defendant then and there excepted.) A. Well, assuming these to be the facts, I would say the blow was what produced the ovaritis. Q. Assuming these facts to...