Aaron v. Metropolitan Street Railway Company
| Citation | 144 S.W. 145,159 Mo.App. 307 |
| Parties | MICHAEL B. AARON, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Decision Date | 28 June 1911 |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.
AFFIRMED CONDITIONALLY.
John H Lucas and Ben F. White for appellant.
The court erred in overruling defendant's motion for new trial: (a) Defendant was entitled to a new trial on the ground of newly discovered evidence. Proper diligence was shown; the evidence had been kept concealed as thoroughly as possible by plaintiff, and, owing to the nature of the disease and its treatment, it was very difficult to get at. Its nature was such as that it ought to very materially affect the verdict of a jury. State v. Murray, 91 Mo. 103; State v. Baily, 94 Mo. 315; Folding Bed Co. v. Railroad, 148 Mo. 478. (b) There ought to have been a new trial granted because the verdict returned by the jury shows the jury to have been biased and prejudiced against the defendant. Burdict v. Railroad, 123 Mo 236; Nicholds v. Plate Glass Co., 126 Mo. 68; Radney v. Railroad, 127 Mo. 676; Hellenbeck v Railroad, 141 Mo. 112; Chitty v. Railroad, 166 Mo. 443; Stolze v. Transit Co., 188 Mo. 581; Reynolds v. Transit Co., 189 Mo. 408; Gurley v Railroad, 104 Mo. 211; Haynes v. Town of Trenton, 108 Mo. 134; Whalen v. Railroad, 60 Mo. 323; Adams v. Railroad, 100 Mo. 555.
M. J. Oldham and Boyle & Howell for respondent.
(1) The reading by the jury of an article in a newspaper commenting on the case was not ground for a new trial. Copeland v. Railroad, 175 Mo. 650; Sherwood v. Railroad, 88 Mich. 108; Fuller v. Fletcher, 44 F. 34, 12 Enc. Pl. and Pr. 622; Kerr v. Lunsford, 31 West Va. 659. (2) The verdict is subject to the judicial discretion of the trial judge, and that discretion exercised upon the verdict, will not be interfered with upon appeal except it be unmistakably exercised unwisely. McCarty v. Transit Co., 192 Mo. 396; Devoy v. Transit Co., 192 Mo. 197; State v. McKenzie, 177 Mo. 716; King v. Gillson, 206 Mo. 279; Berry v. State, 10 Ga. 511; Winn v. Grier, 217 Mo. 461; Boggs v. Lynch, 22 Mo. 566; Caldwell v. Dickson, 29 Mo. 229; Stephens v. Macon, 83 Mo. 345; Cook v. Railroad, 56 Mo. 380; State v. Smith, 65 Mo. 313; Brolaski v. Putnam, 34 Mo. 459; State v. Parker, 106 Mo. 217; Collins v. Glass, 46 Mo. 297.
The plaintiff's suit is to recover damages for an injury sustained as the result of defendant's negligence.
The plaintiff is a lawyer, thirty-six years of age and a member of the Kansas City bar. On the 19th day of October, 1908, he was a passenger on defendant's car operated on what is known as its Troost line. When the car arrived at a point between Ninth and Tenth street on its way north, the motorman lost control of it, and it ran back past Tenth and Twelfth streets on a downward grade with unusual velocity. As the car approached Thirteenth street the indications were that it would collide with another car on the track, and the plaintiff to avoid injury jumped off and received the injury complained of.
The producing cause for the action of the car in getting beyond the control of the motorman was an accumulation of autumn leaves on the defendant's tracks. It was sufficiently shown that plaintiff was justified in jumping when he did, as the cars actually collided and ran on down the grade for a short distance and collided with other cars on the track. As the principal complaint of the appellant is that plaintiff's injuries were largely exaggerated it becomes necessary to examine the evidence with some particularity.
One of the first witnesses called was Dr. Halley, a noted surgeon of Kansas City, who testified that when he first saw plaintiff for the purpose of treating him plaintiff did not tell him of the injury he had received in jumping from the car, but "just complained terribly of the pain in his leg," and that it was not until after he had treated him for three or four days for uric acid and rheumatism, and from which he got no better that plaintiff informed him of the fact that he had jumped from the car as stated. As soon as he received a detail of the injury from the plaintiff the doctor stated he "became cognizant of the fact that the disease or the trouble was due to traumatism of the anterior crural nerve" or an injury to the outside nerve of the leg and thigh. He stated that his treatment of plaintiff had been continuous ever since; that upon examination of plaintiff he found "a tenderness along the whole course of the nerve--a tenderness or pressure;" that he was sleepless and had great pain all the time; that during his treatment plaintiff went to Chicago to see his father and then went to Hot Springs to see if that would do him good. The doctor was asked what effect it would have upon plaintiff if he undertook to do business. A. He testified that he had known plaintiff before the accident, and that after the injury there was a change in his appearance; and that his face had the expression of suffering; that he was much thinner; and that prior to the injury he "was one of the most energetic men that he knew." On cross-examination he stated that plaintiff did not tell him of the injury until after he had asked him if he had had one. He also stated on cross-examination that he had heard that the Chicago doctors treated him by trying to make a hypodermic injection into the sciatic nerve; and that they applied electric light of high power and gave him heat along the line of the nerve; and that when he treated him he discovered no marks of injuries upon him.
Dr. Conner testified, that he was an osteopath physician and examined plaintiff November the 7th and 8th, 1908, and found a twisting of the pelvis and slipping of one of the innominate bones; that one of the big bones on the side was pinching the nerves and causing plaintiff a great deal of pain; that he was unable to relieve him of his condition because he was not a surgeon and that he recommended him to get a surgeon and have the bone put back in its place; and that he was unable to walk on account of pain.
Dr. Annie Peters, another osteopath doctor, saw him soon after he jumped from the car and found according to her diagnosis that he had suffered an injury "to the sacral iliac articulation making the joint of the hip--the articulation of the iliac bone of the spine" or "in common parlance, stove up."
Dr. Forster testified that plaintiff was suffering "from what is termed traumatic neurasthenia" which he defined as, "a severe nervous depression, lack of normal function, owing to injury to the spine or nerves, and low vitality."
Dr. Burnett, a noted specialist on mental and nervous diseases, testified that he examined plaintiff and that he He further testified that some of the muscles of his leg were paralyzed, shrunken, and had become flat and dropped down; and that the chances for his recovery were not good.
Dr. Frank Wright testified and in a general way corroborated the evidence of the other doctors. Plaintiff himself, as well as others, testified as to his good health before he received the injury. Among other matters, plaintiff stated that since his injury he was subject to fainting spells.
The defendant introduced evidence tending to show that the cause of the car getting beyond the control of the motorman was the accumulation of leaves on the track, and that its motorman did all he could under the circumstances to avoid injury to its passengers. Defendant also introduced evidence tending to show that plaintiff had been sick before he received his injury. Miss Elwell testified that she had worked for him at one time and that he was very sick on one occasion while in his office and had to be carried home; that she had seen him frequently since but had not noticed that he looked so badly as he had for the last few days before the trial.
Mr. Lowrance, another lawyer, testified that he saw plaintiff when he was very sick; that he was brought into witness's office where he remained all day and was then taken home. This was the same occasion referred to by the former witness, Miss Elwell; that he had seen him occasionally since his injury and did not notice any difference in his appearance. Other witnesses testified that they had not noticed any difference in plaintiff's appearance since his injury and the time prior thereto.
The jury returned a verdict for plaintiff in the sum of $ 12,500. The defendant moved for a new trial. Among the grounds therefore was the following: "Because of newly discovered evidence that plaintiff was, before and after the time when he alleges he was injured on October 19, 1908 suffering from an incurable disease which caused him to have the fainting spells and nervous prostration testified to by him as the result of injuries he alleged he received on said occasion; that the newly discovered evidence will show that plaintiff's health was not, as he claimed, perfect, prior to said October 19, 1908, but that his health was poor; that he required the services of physicians; that on the 5th day of December, 1907, he had Dr. Roger B. Brewster, a physician, . . . treat him, not for...
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