Breen v. United Rys. Co. of St. Louis

• Decision Date: 04 June 1918
• Docket Number: No. 19061.,19061.
• Parties: BREEN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

204 S.W. 521

BREEN v. UNITED RYS. CO. OF ST. LOUIS.

No. 19061.

Supreme Court of Missouri, Division No. 1.

June 4, 1918.

Appeal from St. Louis Circuit Court; Thomas C. Rennings, Judge.

Action by Lou Breen against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was commenced by plaintiff, in the circuit court of St. Louis, Mo., on September 15, 1914, to recover 25,000 as damages on account of injuries alleged to have been sustained by her in the city of St. Louis aforesaid on April 12, 1914, while alighting as a passenger from one of defendant's cars.

The petition, among other things, charges:

That she was a passenger on one of defendant's west-bound cars, having paid her fare to her point of destination at the intersection of Franklin and Cardinal avenues; that, in obedience to a signal, defendant's employés in charge of said car stopped it at said crossing, at the regular stopping place to discharge passengers; that "while plaintiff was alighting or in the act of alighting from said car, and herself exercising due care under the circumstances, and before she had a reasonable time in which to alight from said car, it was suddenly started forward with such force that it threw plaintiff to the street with such violence as to break the bone of the left leg at or near the hip joint, which said injury is permanent and will cause plaintiff to be a cripple for life and render her unable to get around except with the assistance of crutches or with limping, and that on account of said injuries she has been compelled to incur an indebtedness for doctor's bill of about $300, and she will yet for a long time require further attendance of a physician and incur further expense for doctor's bill, and as a further result of said injury she has suffered severe physical and mental pain, and in the future will continue to suffer severe physical and mental pain; she has been confined to her bed for a period of about five months, and will be unable to leave it except for short intervals, for many months to come; that her nervous system has been shocked and caused her to become very nervous, all of which said injuries are permanent," etc.

The defendant filed a general denial.

The case was tried before a jury on March 2, 1915, a verdict was returned on said date in favor of plaintiff for $12,500, and judgment entered in due form in favor of plaintiff for said amount and costs. Defendant in due time filed its motion for a new trial, which was overruled, and the cause duly appealed by it to this court.

At the conclusion of plaintiff's testimony, defendant asked, and the court refused, the following instruction:

"The court instructs the jury that under the law and the evidence the plaintiff is not entitled to recover, and your verdict must be for defendant."

An exception was duly served to the action of the court in overruling said demurrer. The defendant introduced no evidence, aside from the cross-examination of plaintiff and her witnesses, and asked no instruction, except the foregoing demurrer.

Plaintiff asked, and the court gave, over the objection of defendant, instructions numbered 1, 2, and 3.

The evidence and instructions, as far as necessary, will be considered in the opinion.

T. E. Francis and Chauncey H. Clarke, both of St. Louis, for appellant. Bartley & Douglass, of St. Louis, for respondent.

BAILEY, C. (after stating the facts as above).

I. At the trial of the case the following occurred:

"Q. Mr. Walton, did you hear any conversation between the conductor and the motorman as to how that car came to start then? "Mr. Farley: I object to that.

"The Witness: Why, the conductor— "Mr. Farley: Wait a minute.

"The Court: Objection overruled.

"To which action and ruling of the court defendant, by counsel, then and there duly excepted, and still continues to except."

No other objection was made by counsel for defendant, nor was the trial court advised as to why it was not proper to ascertain from the witness whether he heard any conversation `between the conductor and motorman. The witness was not asked in the above question to state what was said between the conductor and motorman, if any conversation took place between them in his presence. The question as asked was perfectly proper, in order that the court and jury might be advised as to whether any conversation actually occurred between these employés. If the witness had answered that he heard no conversation between them, that would have put an end to the inquiry. There was nothing it, the question propounded to indicate to the court that the witness was going to relate any conversation which might not be considered a part of the res gestæ. The foregoing general and indefinite objection to said question was wholly insufficient under the law to warrant us in convicting the trial court of error in overruling same. Hubbard v. Railway Co., 193 S. W. 579; State v. Tatman, 264 Mo. loc. cit. 370, 175 S. W. 69; State v. Lewis, 264 Mo. loc. cit. 429-430, 175 S. W. 60; Hafner Mfg. Co. v. St. Louis, 262 Mo. loc. cit. 634, 172 S. W. 28; Williams v. Williams, 209 Mo. loc. cit. 250, 168 S. W. 616; State ex rel. v. Diemer, 255 Mo. 336, 164 S. W. 517; De Maet v. Storage, Packing & Moving Co., 231 Mo. loc. cit. 620, 132 S. W. 732; Kinlen v. Railroad, 216 Mo. loc. cit. 173, 174, 115 S. W. 523; Longan v. Weltmer, 180 Mo. 322-340, 79 S. W. 65-5, 64 L. R. A. 969, 103 Am. St. Rep. 573; Shafer v. Railway Co. (App.) 201 S. W. 611; Wagner v. Kansas City (App.) 186 S. W. 1129-1130; Steffens v. Fisher, 161 Mo. App. loc. cit. 390, 143 S. W. 1101.

In view of the foregoing authorities, the general objection to the question aforesaid should be considered in legal effect as though it had never been made.

The witness, without answering the question propounded, voluntarily testified as follows:

"A. The conductor running the trailer said to the motorman when he came up, he said: `How did you come to start?' He said: `I got the signal to start.' The conductor on the trailer said: `I didn't give—I didn't give you any signal to start.' Q. Now, where were you then? A. I was right— Q. Was that when you were back where the woman was? A. Yes, sir. Q. When you first walked back there? A. Yes; when they first came up. The conductor came from one way and the motorman from another. He said: `How did you come to start.' He said: `I got the signal to start.'"

After the objection to the question aforesaid was overruled, counsel for defendant remained silent, while the foregoing answers were given, interposed no objection thereto, did not even ask the court to strike them out, nor did he directly, or indirectly, indicate to the court that the answers given by said witness were not a part of the res gestæ, or that they were incompetent for any reason. If counsel for defendant was not certain in his own mind as to whether a conversation did occur between said employés, and as to whether it was a part of the res gestæ, if it did take place, he should have asked for an examination of the witness, without the presence of the jury, in order that he might lay the foundation for a legal objection to said testimony, if considered by him incompetent.

In Kinlen v. Railway Co., 216 Mo. loc. cit. 173, 174, 115 S. W. 533, Judge Woodson very aptly and appropriately said:

"There should be no masked batteries in the trial of a lawsuit. All matters should be uncovered in a manner that the court, counsel, and jury may see and understand all questions presented for determination."

Before the trial court can be convicted of admitting improper testimony, it must appear from the record that it has been properly and truly advised as to the grounds relied upon for excluding same. The question propounded to the witness, and objected to by counsel for defendant, was in proper form, and said objection was properly overruled. The trial court was never called upon to determine whether the conversation related by Walton was or was not a part of the res gestæ, nor was any legal objection ever made in respect to the admission of same. We are of the opinion that on the record before us the trial court committed no error in overruling defendant's objection to the question propounded to witness Walton.

II. Appellant's second contention reads as follows:

"The court erred in giving plaintiff's instruction No. 1, for the reason it authorized the jury to assess plaintiff's damages for medical expenses incurred in any sum they found would compensate her, without confining the recovery on that item of special damage to the amount demanded therefor in the petition."

The above instruction reads as follows: "The court instructs the jury that, if you find from the evidence that on or about the 12th day of April, 1914, plaintiff was a passenger on one of defendant's west-bound cars on Franklin avenue in the city of St. Louis, Mo., and that as said car was approaching the point where Cardinal avenue crosses Franklin avenue the plaintiff gave the usual and customary signal to stop at said crossing, and that said crossing was a regular stopping place for defendant's cars to receive and discharge passengers, and that in obedience to said signal defendant's car did not stop at said crossing at the usual and customary place to discharge passengers, and that while plaintiff was alighting from said car, or in the act of alighting, and exercising ordinary care for her own safety, and before she had a reasonable time in which to alight from said car, it was suddenly started forward with such force as to throw plaintiff to the street and injure her, then defendant is guilty of negligence in starting said car before plaintiff had a reasonable time in which to alight therefrom, and your verdict will be for plaintiff in such sum as you find from the evidence that she has been damaged, if any, as a result of said negligence."

This instruction does not purport to deal with the medical...