Bragg v. Metropolitan Street Railway Company

• Decision Date: 21 December 1905
• Citation: 91 S.W. 527,192 Mo. 331
• Parties: BRAGG v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

91 S.W. 527

192 Mo. 331

BRAGG v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri, Division One

December 21, 1905

Appeal from Jackson Circuit Court. -- Hon. E. P. Gates, Judge.

Affirmed on condition.

John H Lucas and Chas. A. Loomis for appellant.

(1) The court erred in the admission of incompetent evidence. (a) The evidence of Dr. J. R. Snell: Taylor v. Railroad, 185 Mo. 255; Holloway v. Kansas City, 184 Mo. 39; Allen v. Railroad, 183 Mo. 437. (b) The evidence of Rufus A. Grant: Eddy v. Baldwin, 32 Mo. 374; Kuhn v. Weil, 73 Mo. 215; Weil v. Posten, 77 Mo. 284; Lenox v. Harrison, 88 Mo. 495; Wilson v. Albert, 89 Mo. 540. (c) The evidence of W W. McVey: Above authorities. (d) The evidence of Dr. J. H Thompson: Taylor v. Railroad, supra; Benjamin v. Railroad, 133 Mo. 289. (2) The court erred in refusing to admit competent evidence. City ordinance: Riska v. Railroad, 184 Mo. 188; Payne v. Railroad, 129 Mo. 416; Bluedorn v. Railroad, 121 Mo. 267; Sullivan v. Railroad, 117 Mo. 214; Bluedorn v. Railroad, 108 Mo. 439; Hutchinson v. Railroad, 161 Mo. 253; Merz v. Railroad, 88 Mo. 677; Kelly v. Railroad, 95 Mo. 285; Robertson v. Railroad, 84 Mo. 121. (3) The court erred in giving instructions. (a) There is no limitation to the amount he might recover for "medical and surgical services and medicines," while the petition limits the same to $ 500. (b) There is no evidence of future "pain and anguish." Barr v. Kansas City, 105 Mo. 559; Brake v. Kansas City, 100 Mo.App. 615. Instruction number two: (a) Enlarges the issue by authorizing a recovery if defendant's action contributed to the injury, while the petition counts on defendant's act producing the same. Seymour v. Seymour, 67 Mo. 303; Crews v. Lackland, 67 Mo. 619; Wyatt v. Railroad, 62 Mo. 408; Donahoe v. Railroad, 83 Mo. 565; State v. Rutherford, 152 Mo. 133; State v. Hibler, 149 Mo. 486. (b) Contradicts the allegations of the petition, and is self-contradictory. Seymour v. Seymour, supra; Crews v. Lackland, 67 Mo. 619; Wyatt v. Railroad, 62 Mo. 408; Donahoe v. Railroad, 83 Mo. 565. (c) Ignores the contentions of defendant, and omits essential elements of defense. Railroad v. Stock Yards Co., 120 Mo. 565; Raysdon v. Trumbo, 52 Mo. 39; Chitty v. Railroad, 148 Mo. 74. (d) Is misleading and contradictory of instructions given for defendant. Mead v. Brotherton, 30 Mo. 201; Sawyer v. Railroad, 37 Mo. 241; Green v. Parker, 85 Mo. 107. (4) Refused instruction, number 13, ought to have been given. This simply declares that in determining the question of negligence on the part of the employees of the company, they should consider the rate of speed and violation of law on the part of the Missouri Pacific. Riska v. Railroad, 180 Mo. 188; Gratiot v. Railroad, 116 Mo. 464; Paden v. Van Blargiven. If the proximate cause of the injury was the com, 181 Mo. 128. Number 14 ought to have been negligence of another, the defendant under the pleadings should go acquit. Feary v. Railroad, 162 Mo. 96; Harrison v. Railroad, 55 L. R. A. 608; Potts v. Railroad, 33 F. 610; Federal Steel R. Co. v. Gibson, 96 Pa. St. 83; Quinlan v. Railroad, 4 Daly 488; Central Pass. Co. v. Kuhn, 86 Ky. 578; Railroad v. Boyer, 97 Pa. St. 91; Hite v. Railroad, 130 Mo. 138. (5) The verdict is excessive; such as to shock the sense of justice and right of fair-minded men. Evans v. Trenton, 112 Mo. 405; Cook v. Railroad, 94 Mo.App. 425; Holliday v. Jackson, 21 Mo.App. 669; Ensor v. Smith, 57 Mo.App. 594; Markey v. Railroad, 185 Mo. 365; Taylor v. Railroad, 185 Mo. 262; Nicholds v. Plate Glass Co., 126 Mo. 67; Rice, Stix & Co. v. Sally, 176 Mo. 148.

Scarritt, Griffith & Jones for respondent.

(1) There is no merit in the appellant's objections to the hypothetical questions propounded to Drs. Snell and Thompson. The sole specific objection relied upon is that the subject of the inquiry is not a matter of expert knowledge. Taylor v. Railroad, 185 Mo. 256; Redmon v. Railroad, 185 Mo. 1; O'Neil v. Kansas City, 178 Mo. 91; Robinson v. Railroad, 103 Mo.App. 112; 1 Wigmore on Evidence, sec. 673. (2) There was no error on the part of the trial court in refusing to admit the alleged speed ordinance of Kansas City. (a) This was objected to among other reasons, as incompetent. The paper offered in evidence did not purport to be under the seal of the city, nor to have been printed or published by authority of the city. It was therefore incompetent. Art. 3, sec. 12, Kansas City charter; R. S. 1899, sec. 3100. (b) It was irrelevant to any issue in the case. This alleged ordinance was the last tender in evidence of the defendant. No such ordinance had been pleaded. It did not and could not apply to the conduct of either the plaintiff or the defendant. The answer, in so far as it applies to the Missouri Pacific Railway Company, charges that the negligence of that company in operating its railroad train was the sole cause of the plaintiff's injuries. Givens v. Van Studdiford, 86 Mo. 159; Brash v. St. Louis, 161 Mo. 437; Payne v. Railroad, 128 Mo. 419. But the fact, as disclosed by this record, is that the motorman did not presume nor assume any such thing. Neither defendant's motorman nor defendant's counsel anywhere in the record pretend that the motorman was misled, or overtaken, because he believed that the Missouri Pacific train was running but six miles an hour, when in fact it was running at a greater rate of speed. Graney v. Railroad, 157 Mo. 666; Fox v. Railroad, 85 Mo. 679. That a presumption as to a fact cannot be indulged by a person who has knowledge to the contrary has been repeatedly held in this State. Nixon v. Railroad, 141 Mo. 425; Lynch v. Railroad, 112 Mo. 420; Payne v. Railroad, 129 Mo. 420; Weller v. Railroad, 120 Mo. 651; Reno v. Railroad, 180 Mo. 469. (3) The objections of appellant to plaintiff's instruction 1 are hypercritical and without merit. It is claimed that the instruction did not limit the recoverable damages to the injury specified in the petition. The language of the instruction limits the recovery to the injuries disclosed by the evidence. Wilbur v. Railroad, 110 Mo.App. 689; Brown v. Railroad, 99 Mo. 318; Seckinger v. Mfg. Co., 129 Mo. 590; Coontz v. Railroad, 115 Mo. 674; State ex rel. v. Bacon, 24 Mo.App. 405; Pinney v. Berry, 61 Mo. 359; Barrett v. Telegraph Co., 42 Mo.App. 542. This record does not show any objection or exception to any offer of evidence tending to show the extent or nature of plaintiff's injuries on the ground that such injury was without the scope of the allegations of the petition. Smith v. Fordyce (Mo.), 88 S.W. 680; West v. Railroad, 187 Mo. 351. (4) The evidence set out by appellant in its brief to show that the verdict is excessive is garbled and unfair. In the light of the evidence it seems to us the claim that the verdict is excessive is absurd. O'Neill v. Kansas City, 178 Mo. 91; Smith v. Fordyce, 88 S.W. 679; Drake v. Kansas City, 88 S.W. 690; Henderson v. Kansas City, 177 Mo. 477.

LAMM J. Brace, P. J., absent.

OPINION

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, Missouri, on its own cars and operated by its own employees. The verdict was for $ 7,500 and defendant, perfecting its 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, the petition 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 equipment 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...