O'Connor v. St. Louis Transit Co.

• Citation: 80 S.W. 304,106 Mo. App. 215
• Parties: O'CONNOR v. ST. LOUIS TRANSIT CO.
• Decision Date: 12 April 1904
• Court: Court of Appeal of Missouri (US)

80 S.W. 304

106 Mo. App. 215

O'CONNOR v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals, Missouri.

April 12, 1904.

WITNESS—CREDIBILITY—EVIDENCE—ADMISSIBILITY.

1. A question asked a witness on cross-examination for the purpose of discrediting her as to whether she had been arrested and tried in police court for whipping a certain person is properly excluded as not tending to affect her character for truth and veracity.

2. A question asked a witness on cross-examination for the purpose of discrediting her as to whether she had ever been fined in police court is properly excluded, a conviction for an infamous offense being alone admissible for that purpose.

Appeal from Circuit Court, Washington County; Frank R. Dearing, Judge.

Action by Marie O'Connor against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Dinning & Hamel and Byrns & Bean, for appellant. J. J. O'Donahue and E. M. Dearing, for respondent.

Statement.

BLAND, P. J.

This is a personal injury case. The petition alleges, in substance, that plaintiff was a passenger on one of defendant's street cars traveling south on Grand avenue, in the city of St. Louis; that her destination was Caroline street; that when said street was reached the car was stopped to allow her to alight, which she attempted to do, but before she had time to do so, and while she was in the act of alighting, the servants of defendant in charge of the car started it with a jerk and jolt, whereby she was violently thrown upon the street, sustaining injuries (enumerated in the petition). The answer was a general denial and the plea of contributory negligence. Plaintiff, the only witness offered as to the occurrence, testified, in substance, that on the evening of January 22, 1903, she was a passenger on her way home on a south-bound Grand avenue car of the defendant. She reached Caroline street, where she wished to alight, at about 6 o'clock, and in response to her signal the car was stopped. As she was in the act of alighting, the car started with a jerk, and threw her to the street, and her left ankle was sprained, hip hurt, her whole body bruised, and her female organs affected. She lay in the street about five minutes, and then got up and hobbled home, a distance of three blocks. The car from which she was thrown was tolerably well filled with passengers, but did not stop after she was thrown to the ground. While she was lying there no other car came by, and nobody came to her assistance. She was lying just across the street from a drug store, and near the Marion-Sims Medical College. On cross-examination she denied ever having had a miscarriage, or ever having had an operation performed on her. She was asked if she was ever arrested and fined in the police court, which question was objected to by the plaintiff, and sustained by the court, and the defendant duly excepted. Before being married to O'Connor, she had lived for a long time with another man as his wife, although she was never really married to him. Other witnesses testified in regard to her ankle being sprained and to the bruises on her left side. Her attending physician testified that she had ovarian trouble, which would necessitate an operation, and which might have been caused by a fall on the street. His opinion in this respect was corroborated by one other physician; but was controverted by the evidence of physicians who had examined the plaintiff under an order of the court. Defendant offered evidence tending to show that plaintiff did not fall from the car at all, and was not injured in any manner whatever when alighting from the car, if she was on the car at all. Etta Pike was then introduced, who testified that she had nursed the plaintiff when she had had a miscarriage or an abortion, and that plaintiff had told her that a doctor had brought an abortion on plaintiff because she and her husband did not get along very well, and she did not want any more children. The doctor that performed the abortion was dead. The defendant then read in evidence a clause of the petition of plaintiff's husband for divorce, which petition plaintiff did not deny. This clause charged plaintiff with having a criminal operation performed on her to produce an abortion. Defendant then offered a judgment of the police court fining plaintiff $10. Also the transcript of another judgment for a breach of the peace by the plaintiff. On the objection of the plaintiff these judgments were excluded. The defendant also offered in evidence the report of Dr. Tupper to Judge Talty on his examination of the plaintiff, and, on objections of the plaintiff, this was excluded. Josie Harter then testified that she had known Mrs. O'Connor for eight years, and had heard plaintiff speak of having had a miscarriage. Defendant asked the plaintiff the following questions on cross-examination: "Q. Did you ever know a lady named Spior? A. Yes. Q. You whipped her once, and I will ask you if she didn't have you arrested and try you in the police court? You were never fined by the police judge in the police court in the city of St. Louis?" An objection to the last two...