Glasgow v. Metropolitan Street Railway Company
| Citation | 89 S.W. 915,191 Mo. 347 |
| Parties | ELLA N. GLASGOW v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Decision Date | 22 November 1905 |
| Court | United States State Supreme Court of Missouri |
Appeal from Jackson Circuit Court. -- Hon. Edw. P. Gates, Judge.
Reversed and remanded.
John H Lucas and Chas. A. Loomis for appellant.
(1) The verdict of the jury was grossly excessive and against the great weight of the evidence upon the extent and character of the injury, and was clearly the result of passion and prejudice. Garrett v. Greenwell, 92 Mo. 120; Chouquette v. Railroad, 152 Mo. 266; Zoye v Trawich, 94 Mo.App. 307; Cooper v. Railroad, 94 Mo.App. 425; Meir v. Railroad, 81 Mo.App. 410; Kennedy v. Railroad, 103 Mo. 1; Chitty v Railroad, 148 Mo. 64; Spohn v. Railroad, 87 Mo. 84; Reichenbach v. Ellerbe, 115 Mo. 588. (2) The court erred in averruling the defendant's objection to the hypothetical questions of the plaintiff propounded to the plaintiff's physician. Taylor v. Railroad, 185 Mo. 255; Gutridge v. Railroad, 94 Mo. 472; Boettger v. Iron Co., 136 Mo. 536; Langstrom v. Railroad, 147 Mo. 465; Koenig v. Railroad 173 Mo. 698; Benjamin v. Railroad, 131 Mo. 289; Graney v. Railroad, 157 Mo. 682; Lawson on Expert Evidence (2 Ed.), 172; Railroad v. Sheldon, 51 P. 809; Jones v. President, etc., 50 N.W. 737. (3) The court erred in excluding evidence offered by the defendant which was relevant, competent and material, proving and tending to prove the condition of plaintiff's health, her habits, demeanor, physical appearance and conduct prior to the accident. (a) Defendant offered testimony tending to prove the physical condition, ability and general appearance as to health and vigor, and her ailments bearing directly upon the existence or non-existence of the injuries complained of, which was excluded by the court. (b) Defendant offered evidence tending to prove plaintiff's habits, conduct, demeanor, appearance, physical strength and ability, and the fact of her becoming intoxicated upon numerous occasions and under various circumstances, which was improperly excluded by the court. (4) It was the duty of plaintiff under the conditions to exercise reasonable care and diligence to procure reasonable and necessary medical treatment, and she cannot recover for damages resulting from such aggravated and increased injuries caused by her own negligence and want of care. And the court erred in refusing to give instructions 11 and 12 asked by defendant. 1 Thompson on Negligence, secs. 202, 251, and 201; Keyes v. Cedar Rapids, 78 N.W. 227; Beach on Contrib. Neg. sec. 34; City of Goshen v. England, 71 N.E. 977; Beach on Contrib. Neg., sec. 34, p. 48, and sec. 69, p. 109; Railroad v. Hobbs, 43 N.E. 479; Railroad v. Jones, 108 Ind. 551; Beach on Contrib. Neg., p. 73, sec. 24; Railroad v. Newell, 104 Ind. 264; 1 Shear. & R. Neg. (4 Ed.), secs. 107-109; 2 Shear. & R. Neg., sec. 741; Bardwell v. Town of Jamaica 15 Vt. 438; 2 Thomp. Neg., p. 1162, sec. 13; Railroad v. Falvey, 104 Ind. 409; Gould v. McKenna, 86 Pa. St. 297. (5) Counsel for plaintiff, in his closing argument to the jury, made statements, charges and accusations which were highly inflammatory and criminal in their character, and which were calculated to (and did) arouse the passions and prejudices of the jury against the defendant. And which were not founded upon nor supported by any evidence in the case, which statements were excepted to by the defendant at the time, and defendant's objections were overruled by the court. Thompson on Trials, secs. 958 and 969; Marble v. Walters, 19 Mo.App. 135; McDonald v. Cash, 45 Mo.App. 79; Smith v. Tel. Co., 55 Mo.App. 626; Ritter v. Bank, 87 Mo. 574; Evans v. Trenton, 112 Mo. 400; Gibson v. Zeibig, 24 Mo.App. 65; Bishop v. Hunt, 24 Mo.App. 377; Railroad v. Meyers, 63 F. 793; Hall v. United States, 150 U.S. 76; Tucker v. Hanniker, 41 N.H. 317; Massingale v. Rice, 94 Mo.App. 430; Mahner v. Linck, 70 Mo.App. 380; Harper v. Tel. Co., 92 Mo.App. 304.
Scarritt, Griffith & Jones for respondent.
(1) The evidence can not but impress any reasonable mind that the damages awarded in this action are not excessive and under the authority of our Supreme Court decisions, the verdict should be upheld. O'Neil v. Kansas City, 178 Mo. 91; Wood v. Railroad, 181 Mo. 433; Hanlon v. Railroad, 104 Mo. 381; Haxton v. Kansas City, 88 S.W. 714; Rapp v. St. Louis, 88 S.W. 865; Smith v. Fordyce, 88 S.W. 679; Drake v. Kansas City, 88 S.W. 690; Henderson v. Kansas City, 177 Mo. 477. The jury are the judges of the credibility of witnesses and where there is substantial evidence to support their verdict, it will not be disturbed as being excessive. Dumman v. St. Louis, 152 Mo. 186; Railroad v. Railroad, 138 Mo. 591; McCloskey v. Pub Co., 163 Mo. 22. (2) The hypothetical questions propounded to plaintiff's physician are based on the evidence and are proper and the trial court did not err in overruling appellant's objections thereto. Redman v. Railroad, 185 Mo. 1; Wood v. Railroad, 181 Mo. 433; Franklin v. Railroad, 87 S.W. 930; Wigmore on Evidence, sec. 673; O'Neil v. Kansas City, 178 Mo.91; Powers v. Kansas City, 56 Mo.App. 577; Russ v. Railroad, 112 Mo. 48; Smith v. Railroad, 119 Mo. 255; Hicks v. Railroad, 124 Mo. 125; Fullerton v. Fordyce, 144 Mo. 531; Robinson v. Railroad, 103 Mo.App. 112. (3) The court did not err in excluding the evidence complained of by defendant under the third point in its brief. The condition of plaintiff's health prior to the date of the accident was incompetent, irrelevant and immaterial to any issue in the case. The evidence excluded, as shown by the record, was as to plaintiff's physical appearance ten or twelve years before, and as to specific acts of drinking and intoxication of which defendant claimed the plaintiff was guilty. These were all properly excluded from the jury. Railroad v. Cotton, 140 Ill. 486; Copeland v. Railroad, 175 Mo. 650; Wright v. Kansas City, 187 Mo. 678; Railroad v. Boteler, 38 Md. 568; State v. Parker, 96 Mo. 389; State v. Taber, 95 Mo. 585; State v. Jackson, 95 Mo. 623; Columbia v. Johnson, 72 Mo.App. 238; State v. Crow, 107 Mo. 346; State v. Ringo, 71 Mo. 419; State v. Goetz, 34 Mo. 85. (4) The court did not err in refusing defendant's instructions 11 and 12 as to the aggravation of the injury. Fugate v. Miller, 109 Mo. 281; Gorham v. Railroad, 113 Mo. 408; State v. Gates, 130 Mo. 351; Buck v. Railroad, 108 Mo. 179; Wolfe v. Supreme Lodge, 160 Mo. 675; Connolly v. St. Joseph Press Ptg. Co., 160 Mo. 447; Klockenbrink v. Railroad, 81 Mo.App. 351. (5) Defendant's exception to the remarks of plaintiff's counsel in his closing argument was not preserved in the record. The remarks, which defendant falsely asserts were made by plaintiff's counsel, first appear in defendant's motion for a new trial, but were not taken down at the time of the trial by the court stenographer and made a part of the record. Embodying the remarks of the plaintiff's counsel objected to in a motion for new trial is not sufficient. Estes v. Railroad, 85 S.W. 909; James v. Kansas City, 85 Mo.App. 20; State v. Smith, 114 Mo. 406; State v. Brown. 181 Mo. 222; Mercantile Co. v. Burrell Sisters, 66 Mo.App. 117; State v. Rufus, 149 Mo. 406. (6) There was no error in the refusal of instructions 15 and 16 asked by defendant. The giving of said instructions would have been equivalent to instructing the jury to return a verdict for the defendant. Fugate v. Miller, 109 Mo. 281; Gorham v. Railroad, 113 Mo. 408; State v. Gates, 130 Mo. 351; Buck v. Railroad, 108 Mo. 179; Wolfe v. Supreme Lodge, 160 Mo. 675; Connolly v. St. Joseph Press Ptg. Co., 166 Mo. 447; Klockenbrink v. Railroad, 81 Mo.App. 351. (7) There was no error in excluding the testimony of Dr. T. Doyle, offered as a witness by defendant. The information acquired by the witnesses was privileged. R.S. 1899, sec. 4659; Kling v. Kansas City, 27 Mo.App. 231; James v. Kansas City, 85 Mo.App. 20; Groll v. Tower, 85 Mo. 249; Corbett v. Railroad, 26 Mo.App. 621; Norton v. City of Moberly, 18 Mo.App. 457.
Plaintiff recovered a judgment against the defendant, a street railway company, for $ 5000 damages for personal injuries received by her, by falling when she was in the act of alighting from one of defendant's street cars. Her statement is that she was a passenger on the car which had stopped in obedience to a signal to allow her to alight, and that while she was on the step in the act of alighting the car was suddenly started forward with such force that she was thrown to the street and received severe injuries. The accident occurred September 25th, 1900. This suit was brought March 4th, 1902.
The plaintiff's testimony tended to prove as follows: She was about thirty-five years old, married, but separated from her husband, was living with her parents and was employed as a saleswoman in a department store at a salary of four dollars a week. She was returning home from her day's work on the afternoon in question, when the car in which she had taken passage approached the street at which she designed to alight; at her request it was stopped, and she arose and passed out in view of the conductor to the step from the rear platform, and as she was in the act of stepping to the ground -- but before she could finish the act -- the conductor gave a signal for the car to start ahead, and it did so with so much sudden force that she was thrown to the street and badly hurt; her mother and another woman friend who were present carried her into the house and put her to bed and bandaged her bruises. The next morning she went to her work and continued to do so for four or five days but was feeling badly all the while and at the end of that period, say about the 4th or 5th of October, she had to give up her work and go home and has not since been...
To continue reading
Request your trial