Averitt v. Metropolitan Street Railway Company
| Decision Date | 03 October 1910 |
| Parties | MARTHA J. AVERITT, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Hermann Brumback, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas, Piatt & Lea for appellant.
(1) The petition does not charge generally or specially that any act of defendant was done negligently and, therefore, fails to state a cause of action. Rawson v. Railroad, 129 Mo.App. 613; McCurt v. Hotel Co., 144 Mo. 397; Shaw v. Goldman, 116 Mo.App. 332; Loehring v Construction Co., 118 Mo.App. 163; Dyer v Railroad, 34 Mo. 127; Brown v. Railroad, 33 Mo. 309; Gray v. Hornbeck, 31 Mo. 399. (2) The question of negligence or of contributory negligence is ordinarily for the jury, but when the only fair inference to be drawn from all the evidence is that defendant was not negligent or that plaintiff was guilty of contributory negligence, it is a question for the court and judgment should be for the defendant. Coffey v. Carthage, 186 Mo. 585; Heberling v. Warrensburg, 103 S.W. 36; Womack v. St. Joe, 168 Mo. 241; Sindlinger v. Kansas City, 126 Mo. 315; Boyd v. Springfield, 62 Mo.App. 456; Cohn v. Kansas City, 108 Mo. 393; Ray v. Poplar Bluff, 70 Mo.App. 261. (3) Conclusions of medical experts or lay witnesses which invade the province of the jury are erroneous. Taylor v. Railroad, 185 Mo. 255; Glasgow v. Railroad, 191 Mo. 347; Smith v. Kansas City, 125 Mo.App. 150; Roscoe v. Railroad, 202 Mo. 576. (4) Depositions of a witness residing in the county cannot be read in evidence unless it is affirmatively shown that the witness is dead, absent from the county, unable by reason of bodily infirmity to attend court or more than forty miles distant at the time of the trial. R. S. 1899, sec. 2904. (5) Evidence tending to show the nature and extent of injuries to womb is erroneous and illegal under allegation of petition expressly disclaiming all knowledge as to same. (6) It was error for the plaintiff to read to the jury from her petition sections of a city ordinance not in force at the date of the accident, requiring defendant to maintain a watchman at the scene of the accident. State v. Coleman, 186 Mo. 158; Hollenbeck v. Railroad, 141 Mo. 104. (7) Instructions must be direct, certain, accurate, clear and explicit and must not be obscure, vague, involved or ambiguous. 11 Ency. Pl. and Pr. pp. 137, 141; Klamp v. Rodewall, 19 Mo. 450; Frank v. Railroad, 57 Mo.App. 181; Dunn v. Dunnaker, 87 Mo. 597; Crole v. Thomas, 17 Mo. 329. (8) When the preponderance of the evidence is against the verdict, or the verdict is excessive and unjust, it raises the presumption of passion, prejudice, misdirection to or mistake of the jury and the verdict should be set aside. Lehnick v. Railroad, 118 Mo.App. 616; Spohn v. Railroad, 87 Mo. 84; Price v. Evans, 49 Mo. 396; Fulger v. Bothe, 117 Mo. 501.
J. G. Littick and Dana, Cowherd & Ingraham for respondent.
(1) A statement of facts, which on their face disclose negligence, is sufficient even if the direct charge of negligence is omitted. Bond v. Railroad, 122 Mo.App. 207; Rawson v. Railroad, 129 Mo.App. 630; Allen v. Railroad, 183 Mo. 411, 433; Keaton v. Railroad, 116 Mo. 231; Dyer v. Railroad, 24 Mo. 127; Luckel v. Century Bldg., 177 Mo. 608. We do not, however, need such authorities in this case as the negligence was charged in terms. (2) No one will dispute the contention of appellant that the question of negligence or contributory negligence is ordinarily for the jury, nor the further contention that when only one inference can be drawn from the evidence, it is the duty of the court to so declare it. It is needless to cite authorities upon such a proposition. The evidence here conclusively shows a plain contradiction and the question of the weight of the evidence is always for the jury. (3) The questions asked Dr. Riegle did not invade the province of the jury. When there is a fact in a case, which calls for any particular knowledge or experience or one upon which men of common information are not capable of forming a judgment, it is a case for expert evidence. Buckalew v. Railroad, 107 Mo.App. 575, and cases cited; Holloway v. K. C., 184 Mo. 19; Wood v. Railroad, 181 Mo. 450. This objection is raised for the first time in this court. (4) The deposition of the witness Rena Anglin was competent and the circumstances authorizing the introduction of the same were fully proven. The deposition itself showed the home of plaintiff to be in another county. Michael v. Mathers, 77 Mo.App. 556; Sullivan v. Railroad, 95 Mo. 113. Even if the admission of this evidence was error it is not material as the evidence was cumulative. Reno v. Kingsbury, 39 Mo.App. 240; Hogan v. Railroad, 150 Mo. 36. (5) The petition specifically stated plaintiff had sustained injury to her womb and genital organs; and described the injuries in part. Certainly evidence tending to prove these injuries was competent. (6) It was entirely competent to read the petition to the jury. If there were in said petition improper statements, defendant should have moved to strike them out. If there were allegations unproven, defendant could reach the same by instruction. There is nothing in this record, however, to show that the statements complained of in the petition were ever read to the jury. (7) The instructions are direct, certain, accurate and explicit, and are not properly subject to the criticism made by appellant. The form has been often approved. Luckel v. Century Bldg., 177 Mo. 608. (8) The jury are the judges of the weight of the evidence and the credibility of the witnesses. When they have exercised their judgment in a case fairly tried and submitted under proper instructions and when the trial court has sustained their verdict by overruling the motion for new trial this court will not pass upon the question of the preponderance of the evidence. If there is any evidence to sustain the verdict it will be upheld. Gorton v. Ins. Co., 115 Mo.App. 69; Brod v. Transit Co., 115 Mo.App. 214; Conrad v. Railroad, 116 Mo.App. 517; Shoe Co. v. Sally, 114 Mo.App. 222; Dowling v. Wheeler, 117 Mo.App. 169; Harris v. Sheffel, 117 Mo.App. 514.
This is an action for damages for personal injuries alleged to have been caused by the negligence of defendant. The answer is a general denial and a plea of contributory negligence. The cause is before us on the appeal of defendant from a judgment of twenty-five hundred dollars rendered for plaintiff on a verdict for that amount.
The injuries of plaintiff were inflicted about five o'clock p. m. November 10, 1903, and were caused by the collision between the one-horse buggy in which she was driving and an electric car operated by defendant on the Westport line of its street railway system in Kansas City. The place of the collision was in Thirteenth street (which runs east and west) between Walnut street and Grand avenue. Plaintiff and her husband drove up Walnut street from the south and stopped at the northeast corner of the intersection of that street with Thirteenth street where Mr. Averitt alighted and went into a saloon on that corner to transact some business. The saloon faced west on Walnut street and had a back door opening on Thirteenth street. Concluding to drive to the back door where she could look into the saloon and hurry her husband, plaintiff turned around in Walnut street and drove into Thirteenth street from the west on the south side of the street, intending to cross to the north side and to stop in front of the back door of the saloon. At that time, outbound Westport cars ran south on Walnut street to Thirteenth where they crossed over to Grand avenue. Defendant had two tracks in Thirteenth street and cars running east used the south track. The street is narrow and the distance between the outside rail of the south track and the curb was only eight feet. Rails for use in repairs being made on the tracks were strung along the south side of the street and occupied some of the space for vehicles. That obstruction so contracted the already narrow roadway that a street car on the south track barely could pass a buggy on that side of the street. The progress of plaintiff to the stopping place she had selected was delayed by the passage on the north track of a westbound car and before she could cross the south track an outbound Westport car turned into Thirteenth street and came up behind her buggy. A man jumped off of that car, went to her horse, seized the bridle and led him forward to the south side of the street in order that the car might pass. The car followed slowly and as soon as the buggy appeared to be in the clear, proceeded to pass. The end of the front crossbeam or bumper of the car which was rounded in front struck a wheel of the buggy with enough force to throw plaintiff out of the seat, but owing to its rounded surface, it slid by the wheel. The motorman then increased the speed of the car and the front surface of the end of the hind bumper which was not rounded in front was brought into collision with the buggy wheel with the result that the wheel was wrecked and plaintiff was thrown down in the buggy in a way to produce the injuries of which she complains.
The facts stated are taken from the evidence of plaintiff and are contradicted by the evidence of defendant which tends to show that the buggy was in the clear when the front end of the car passed; that it was not struck at all by the front beam end and the entire car would have passed safely had not the horse backed the buggy into the car. There is evidence to the effect that the backing of the horse was caused either by its own restiveness or by the act of plaintiff in pulling back on the lines in protest...
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