Bragg v. Metropolitan St. Ry. Co.

• Citation: 192 Mo. 331,91 S.W. 527
• Parties: BRAGG v. METROPOLITAN ST. RY. CO.
• Decision Date: 21 December 1905
• Court: United States State Supreme Court of Missouri

91 S.W. 527

192 Mo. 331

BRAGG v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 21, 1905.

1. APPEAL—REVIEW—QUESTIONS NOT RAISED AT TRIAL.

Objections to a hypothetical question, not specifically raised at the trial, will not be considered on appeal.

2. EVIDENCE—SUBJECTS OF EXPERT TESTIMONY —CAUSE AND EFFECT—INJURIES TO PERSON.

In an action for injuries, whether the conditions found on an examination of plaintiff by a physician might, could, or would result from the injury and accident outlined in a hypothetical question and assumed to be true, was a proper subject of expert testimony.

3. TRIAL—OBJECTIONS TO EVIDENCE—SCOPE.

An objection to a hypothetical question, that it was incompetent and not a matter of expert knowledge, was insufficient to present the question that the expert was thereby asked to decide matters in issue which were for the jury.

4. SAME.

An objection to a hypothetical question, that it was not a proper hypothetical question, was insufficient for indefiniteness.

5. WITNESSES—CREDIBILITY — CROSS-EXAMINATION TO DISCREDIT.

Where, in an action for injuries to a passenger on a street car in a collision with a railroad train at a crossing, plaintiff charged negligence only with reference to the operation of the car, he was entitled to cross-examine the motorman, who testified that the accident was caused by a defective brake on the car, for the purpose of showing by indirection the improbability of the brakes being out of order at the time of the accident, in order to obviate the effect of a variance caused by the motorman's testimony.

6. CARRIERS—INJURIES TO PASSENGERS—EVIDENCE —CITY ORDINANCES—REPEAL.

Where, in an action for an injury to a passenger on a street car in a collision with a railroad train, a city ordinance regulating the speed of trains at the point in question was otherwise competent, it was no objection to its admission that it had been repealed.

7. SAME—PLEADING—ISSUES AND PROOF.

Where, in an action for injuries to a passenger on a street car in a collision with a railroad train, defendant undertook to show that the negligence of the railroad company was the sole cause of the accident, it was not necessary that defendant should plead a city ordinance regulating the speed of steam railroad trains claimed to have been violated by the railroad company at the time of the accident, in order to authorize the admission of such ordinance in evidence, when no proof is offered of such repeal.

8. NEGLIGENCE—PLEADING—GENERAL DENIAL —PROOF.

In an action for injuries, defendant is entitled to show that the negligence of a third person was the sole cause of the accident under a general denial.

9. CARRIERS — INJURIES TO PASSENGERS — RAILROADS—SPEED ORDINANCE.

Where, in an action for injuries to a passenger on a street car in collision with a railroad train at a crossing, the motorman in charge of the car testified that he discovered the danger of a collision in time to have stopped the car, which he failed to do because his appliances were defective, he was not entitled to presume that the approaching train was running within the rate of speed prescribed by a city speed ordinance, and hence such ordinance was inadmissible in defendant's favor.

10. APPEAL—THEORY OF CAUSE—ESTOPPEL TO ALLEGE ERROR.

Where an action for injuries was tried by both sides on the theory that emaciation, deafness, and nervousness were the natural results of a violent concussion and shock about the head, which plaintiff has received, and evidence was offered by both parties on such subject, defendant could not object to an instruction authorizing the jury to award such damages as would compensate plaintiff for his injuries received by reason of defendant's acts and conduct, in that it did not limit the recovery to injuries alleged in the petition, which did not include either emaciation, injuries to the nervous system, or impairment of the auditory nerve.

11. SAME—EVIDENCE—PLEADINGS—REVERSAL —STATUTES.

Where no question was made at the trial in respect to the relevancy of certain evidence under the pleadings, the Supreme Court will not reverse the judgment because evidence was admitted tending to show injuries not alleged, since Rev. St. 1899, § 865, prohibits a reversal for errors not materially affecting the merits of the action.

12. NEGLIGENCE—JOINT AND SEVERAL LIABILITY.

Where plaintiff pleaded that defendant's negligence "caused" the plaintiff's injuries, it was proper for the court to charge that plaintiff was entitled to recover if defendant's negligence "contributed" with the negligence of a third person to such injury; defendant under such circumstances being liable to the same extent as though it had been solely negligent.

13. DAMAGES—INJURIES—EXCESSIVENESS.

In an action for personal injuries to a laborer earning $480 a year, a verdict in favor of plaintiff for $7,500 held excessive to the extent of $2,500, where the evidence as to the permanency of the injuries was weak and largely guesswork.

Appeal from Circuit Court, Jackson County; E. P. Gates, Judge.

Action by Frank Bragg against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed conditionally.

John H. Lucas and Chas. A. Loomis, for appellant. Scarritt, Griffith & Jones, for respondent.

LAMM, J.

This is a suit for damages, based on the alleged negligence of the defendant, an electric railway company engaged in conveying passengers for hire in Kansas City, Mo., on its own cars and operated by its own employés. The verdict was for $7,500, and defendant, perfecting his appeal, brings the case here for review.

Omitting pro forma allegations and matter by way of inducement, as well as descriptive of the injuries sustained by plaintiff, and directing our attention to the negligence pleaded, it is as follows: "* * * That while plaintiff was on said car as a passenger, and while said car was proceeding north on and along said Montgall avenue, at the place where said tracks of said defendant cross the said tracks of the Missouri Pacific Railway Company, within the corporate limits of said Kansas City, the servants and agents in charge of said car carelessly and negligently ran the same on and upon the tracks of the said Missouri Pacific Railway Company in front of and against an engine and train of cars which were running on said tracks of the Missouri Pacific Railway Company in a westerly direction, at a rapid rate of speed, thereby causing the injuries to plaintiff hereinafter complained of; that before attempting to cross said railroad tracks of the Missouri Pacific Railway Company as aforesaid the defendant, by and through its servants and agents in charge of said car, negligently failed and neglected to stop said street car upon which plaintiff was riding as a passenger as aforesaid, and so failed and neglected to ascertain the approach of said railroad train by looking or listening for the same before attempting to cross said tracks, and so failed to have or provide any watchman or other means of warning of the approach of said train at said crossing; that the said collision so occasioned by the negligence of the defendant as aforesaid was of great force and violence, throwing said street car wherein plaintiff was riding as a passenger as aforesaid from the tracks whereon it was being propelled, thereby," etc. The last specification of negligence, whereby liability is predicated of a failure "to provide any watchman or other means of warning of the approach of said train at said crossing," was taken from the jury by instruction, and thus becomes by-matter in the case. It will be seen that the pleader does not rely upon a general averment of negligence, and, furthermore, that the negligence pleaded is limited to running and operating the car, and that the specifications do not cover or include a defective or unsafe car, or defective or unsafe mechanical equipments in use thereon; and this distinction should be borne in mind, passim, as pertinent to some of the questions hereinafter to be considered.

To this complaint defendant interposed a general denial, followed by special matter, viz.: "And for further answer defendant says that whatever injuries plaintiff sustained, if any, were solely caused by the negligence and carelessness of the Missouri Pacific Railway Company, in carelessly and negligently running its train over, upon, and against the car of defendant, and in running its said train at a careless, negligent, and unlawful rate of speed, and in carelessly and negligently failing to ring its bell or sound its whistle while its train was approaching the crossing of this defendant's tracks, and in carelessly and negligently failing to give any notice or warning of the approach of its said train to the tracks of defendant where the injury occurred. Wherefore defendant prays to be dismissed with its costs."

Montgall avenue is a north and south street in Kansas City, and crosses the Missouri Pacific Railway at right angles. Two tracks of appellant company are laid in this street, the east of which concerns us. The right of way of the Missouri Pacific Railway Company is 100 feet wide, with a single track laid in the center, upon which incoming, west-bound trains alone run. Approaching from the south, the street railway crosses the railroad track on grade, and for a distance south the surface of the earth is level. Fronting Montgall avenue for 100 feet on the east side, south of the railroad right of way, and flush with the south line of said right of way, is a building two stories high devoted to "bottling" purposes, and which building obscures the view eastwardly on the Missouri Pacific track to any one on said avenue close to and south of said right of way. But, the right of way once reached, there was a clear view to the east for a considerable distance, and this condition continued for 50 feet in approaching and crossing the Missouri...