Ashby v. Elsberry & N. H. Gravel Road Co.

• Decision Date: 24 January 1905
• Citation: 111 Mo. App. 79,85 S.W. 957
• Court: Missouri Court of Appeals
• Parties: ASHBY v. ELSBERRY & N. H. GRAVEL ROAD CO.<SMALL><SUP>*</SUP></SMALL>

85 S.W. 957

111 Mo. App. 79

ASHBY v. ELSBERRY & N. H. GRAVEL ROAD CO.^*

St. Louis Court of Appeals. Missouri.

January 24, 1905.

TURNPIKES — DEFECTIVE ROAD — INJURIES — ACTIONS — DAMAGES — MARRIED WOMEN — MEDICAL SERVICES — ACTIONS — EVIDENCE — EXCLUSION — INSTRUCTIONS — PRIOR APPEAL — LAW OF THE CASE — REVIEW.

1. An exception to remarks of the court in overruling an objection to evidence will be deemed waived where it is not carried forward into the motion for a new trial, and called to the court's attention on such motion.

2. Where a witness was reluctant or his memory appeared to be clouded, it was in the discretion of the court to permit him to be examined by referring to his evidence given on a former trial, and preserved in the bill of exceptions.

3. Where defendant, in an instruction requested, used the phrase "ordinary care," without

attempting a definition, and did not request an instruction defining such term, it could not object to an instruction that, whenever the term "ordinary care" or "in an ordinarily careful manner" was used, such care as an ordinarily prudent, careful person or persons would or should exercise was meant, on the ground that the words "would or should exercise" required the exercise of the care a person of ordinary prudence "should use," and not the care ordinarily prudent persons "do use" in like circumstances.

4. Under Rev. St. 1899, § 4335, providing that a married woman should be deemed a feme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, etc., she, being liable for medical attendance contracted for by her as a result of an injury, was entitled to recover therefor in an action for the injuries.

5. An instruction that, if the jury found for plaintiff, they should, in estimating her damages, consider the character and extent of her injuries, mental and physical, pain and suffering endured by her in consequence thereof, their permanency, if shown by the evidence to be permanent, and any amount shown by the evidence to have been expended by her or contracted by her for medical and surgical attention, not exceeding a sum specified, etc., was not objectionable as stating the right to recover too broadly.

6. Where defendant, after having proved by its witness that after the accident its road at the place of the accident had been broadened and guard rails erected, made no motion to exclude or withdraw the same, it was not error for the court thereafter to refuse to charge the jury not to consider such testimony.

7. A ruling sustaining an objection to a question asked of a witness cannot be reviewed where the bill of exceptions does not show the answer expected.

8. Legal propositions determined on a former appeal are the law of the case, and not subject to reconsideration on a subsequent appeal.

Appeal from Circuit Court, Lincoln County; Houston W. Johnson, Judge.

Action by A. L. Ashby against the Elsberry & New Hope Gravel Road Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

W. A. Dudley and D. P. Dyer, for appellant. Norton, Avery & Young, for respondent.

BLAND, P. J.

1. This cause was appealed here on a former occasion, and is reported in 99 Mo. App. 178, 73 S. W. 229. The evidence on the second trial is substantially the same as on the first one. In the opinion filed by Judge GOODE on the former appeal, a full and fair statement of the pleadings and facts as shown by the record is set forth, and we adopt his statement in full. The last trial resulted in a verdict and judgment for plaintiff in the sum of $650, from which defendant duly perfected its appeal. One of the allegations of negligence in the petition is that the defendant permitted cattle to run unattended upon its road. In the opinion on the former appeal it is said: "There is nothing in this case to show that it amounted to negligence to let cows stray on the road from cross-roads to the extent they did." Over the objection of the defendant, plaintiff was permitted to show that cattle, unattended, did stray upon the road. This ruling is assigned as error. The jury was expressly instructed that defendant was not required to keep stray cattle off of its road, and could not be convicted of negligence if they strayed upon it. This instruction practically withdrew from the jury all the evidence in regard to cattle straying on the road, except the mere fact that they were on it at the time and place of the injury. To show this latter fact was a part of plaintiff's case, and so connected therewith that proof of it could not be dispensed with. In this same connection, the court, in passing on objections to evidence offered to show that cattle strayed upon the road, made the following oral declaration or statement in the presence of the jury, to which defendant objected and excepted at the time: "The objection is overruled, in this view of the case — that the gravel road, charging toll for the use of the road, must keep the road clear, like a road overseer must keep the public highway clear of obstructions — and it might possibly be an element in the case." Defendant's objection was not carried forward in the motion for new trial, and is nowhere mentioned or referred to in said motion. In Harris v. Powell, 56 Mo. App., loc. cit. 26, this court, in passing upon a similar objection in like circumstances, said: "Complaint is also made by appellant as to the remarks of the court in excluding the evidence offered to prove the customs of physicians in visiting patients. The exception to these remarks of the court, not having been called to its attention in the motion for a new trial, is to be deemed waived." In respect to the same character of evidence, Watson, a witness for plaintiff, was partially examined by referring to his evidence on the former trial, as preserved in the bill of exceptions, to which mode of examination defendant duly objected and excepted. If the witness was reluctant, or if his memory was clouded, we can see no impropriety...