Conley v. Lafayette Motor Car Company
| Decision Date | 06 April 1920 |
| Citation | 221 S.W. 165,204 Mo.App. 37 |
| Parties | RICHARD CONLEY by NELLIE CONLEY, his next friend, Defendant in Error, v. LAFAYETTE MOTOR CAR COMPANY, Plaintiff in Error |
| Court | Missouri Court of Appeals |
Writ of Error to Circuit Court of the City of St. Louis.--Hon George H. Shields, Judge.
AFFIRMED.
STATEMENT.--This controversy is here upon writ of error to the Circuit Court of the City of St. Louis, plaintiff below (defendant in error here) having obtained a judgment in the sum of $ 7500 against the defendant nisi (plaintiff in error here).
Plaintiff on May 5, 1917 (then 17 years old) while riding on an automobile, seated next to the chauffeur, and when near 39th street and McRee avenue, in the city of St. Louis, an automobile of the plaintiff in error, Lafayette Motor Car Company, and an automobile of the Trinidad Asphalt Company and Heman Construction Company, who were also defendants below, collided with each other through the alleged negligence of the drivers of said automobiles, and by reason of the force and impact of such collision the automobile of the Lafayette Motor Car Company was thrown against the automobile in which plaintiff was riding and plaintiff was violently thrown from the automobile to the street, plaintiff falling on his back against the curb of the street, and suffered alleged injuries which at the time of the trial amounted to a general arthritis involving his ankles, knees hip joints, illiosocral joints and his back bone, with the result that for a number of months prior to and at the time of the trial plaintiff was bedridden, not being able to bend any of his joints from his waist down.
Each of the defendants filed a general denial and at the trial the jury found in favor of the defendants Heman Construction Company and Trinidad Asphalt Company, and returned a verdict against the defendant, Lafayette Motor Car Company, which in due course sued out a writ of error and is the plaintiff in error here.
Judgment affirmed.
Bryan Williams & Cave for plaintiff in error.
(1) Where a condition, under the evidence, may be due to either of two existing causes, accident or disease, for one only of which the defendant is liable, mere proof by the plaintiff that the one for which the defendant is liable is a possible cause is not sufficient, and before the plaintiff is entitled to have his cause submitted to the jury it is necessary that he go further and show with reasonable certainty that the cause for which the defendant is liable produced the condition. This the plaintiff here has failed to do. Williams v. Railroad, 176 Mo.App. 44; Young v. Railroad, 113 Mo.App. 636-41; Shore v. Bridge Co., 111 Mo.App. 278; Driskell v. Ins. Co., 117 Mo.App. 362; Goodes v. Order of United Commercial Travelers' Association, 174 Mo.App. 330; Warner v. Railroad, 178 Mo. 125; O'Connell v. Railroad, 149 Mo.App. 504; Milirons v. Railroad, 176 Mo.App. 42, 44. (2) The plaintiff's petition charged directly that the automobile of the defendant, Lafayette Motor Car Company, collided with the Bona car. The defendant's evidence showed that the auto of the Lafayette Motor Car Company did not so collide, but that the auto of the Herman Construction Company collided with the Bona car and caused the plaintiff to be thrown out. On this allegation and these facts this defendant was entitled to have the jury instructed that if its automobile did not collide with the car in which the plaintiff was riding the verdict must be for the defendant. This was a failure of proof, and the court erred in refusing to so instruct. Gibbs v. Dayton, 166 Mich. 263; Trout Brooks I. & F. Co. v. Hartford E. L. Co., 77 Conn. 338; Mucklinger v. Lambert, 76 N. J. Law, 813. (3) The court erred in sustaining an objection to the following question asked witness Armstrong: This witness had testified that he had noticed certain peculiarities in the plaintiff's walk prior to May 5, 1917. Plaintiff's condition before that time was most material. It was important in determining the credit to be given to this witness' recollection to know whether any or what reason existed at the time to fix the facts in his memory. He should, therefore, have been allowed to state that the plaintiff's condition caused comment among the employees. Wigmore on Evidence, par. 826; Angel v. Rosenbury, 12 Mich. 24; Patton v. Lund, 114 Iowa 204; Cole v. Ry. Co., 105 Mich. 549; Brown v. R. R., 130 N.W. 267; 17 Cyc. 784. (4) The court erred in sustaining an objection to the question (set out in the statement) asked Dr. Harman attempting to fix the time when he first examined the plaintiff's teeth. See cases cited under point 3, supra. (5) The court erred in permitting the plaintiff, over the objection of the defendant, to tell why he hadn't told his mother about the accident. For while a party may properly be permitted to testify to his own motive or intent whenever it is material to the issues to determine what such motive or intent was, such testimony is, of course, receivable only on the assumption that the intent or motive is a fact permissible to be proved under the substantive law of the case and where the intention of a party is not an issue in the case his undisclosed wishes, intent or motive are incompetent and immaterial. Wigmore on Evidence, par. 581; Jones on Evidence, par. 170; Abbott's Civil Trial Brief, p. 444, citing Leland v. Converse, 181 Mass. 487; Weiss v. Morris Bros., 102 Iowa 327, and Heffernen v. Neumond, 198 Mo.App. 685.
Jas. A. Ryan and Kinealy & Kinealy for defendant in error.
(1) In considering a demurrer to the evidence plaintiff's evidence must be taken as true, defendant's contradictory evidence as untrue and plaintiff given the benefit of every favorable inference that can be fairly drawn from the evidence. Stauffer v. Railroad, 243 Mo. 305; Williams v. Railway, 257 Mo. 87; Dawson v. Railroad, 197 Mo.App. 169. (2) Aside from the advisory testimony of doctors, if the evidence shows an injury followed by pain and uninterrupted steady progress from perfect health to physical incapacity the case is one for the jury. Shore v. Bridge Co., 111 Mo.App. 278; Fink v. Railroad, 161 Mo.App. 314; Sharp v. Railway, 213 Mo. 517; MacDonald v. Railroad, 219 Mo. 468; DeMaet v. Storage Co., 231 Mo. 615. (3) The rule that where defendant is liable if the injury proceeds from a certain cause and the evidence leaves it a matter of speculation as to whether it proceeded from that or some other cause, the plaintiff cannot recover, has no application where the matter resolves itself into a question of credibility between plaintiff's witnesses and those for the defendant. Rinehart v. Railway, 204 Mo. 269; Yongue v. Railroad, 133 Mo.App. 141. (4) Where there is an immaterial variance between the pleading and the proof, the court may instruct on the evidence as introduced or may order an amendment of the pleading. 1 Rev. St. 1909, sec. 1847; Thornton v. Smelting Co., 178 Mo.App. 38; Perry v. Van Matre. 176 Mo.App. 100; Lord v. Railroad, 155 Mo.App. 175; Hensler v. Stix, 113 Mo.App. 162. (5) No variance is material unless the opposite party makes it so by filing an affidavit showing he has been misled to his prejudice. 1 Rev. St. 1909, sec. 1846; Fisher & Co. v. Realty Co. , 159 Mo. 562. (6) Aside from the failure of the defendant to file an affidavit, the variance in this case was utterly trivial, immaterial and without influence on the trial. Murphy v. Wilson, 44 Mo. 313; Allred v. Bray, 41 Mo. 484; Ridenhour v. Railway, 102 Mo. 270; State v. Orrick, 106 Mo. 111; Crawford v. Stockyards Co., 215 Mo. 394; Goode v. Coal Co., 179 Mo.App. 207; Perry v. Van Matre, 176 Mo.App. 100; Gardner v. Railway, 167 Mo.App. 605; Lord v. Railroad, 155 Mo.App. 175; Hensler v. Stix, 113 Mo.App. 162. (7) Counsel's interpretation of a witness's testimony cannot be substituted for an abstract thereof. Nolan v. Johns, 126 Mo. 159; Fronk v. Fronk, 159 Mo.App. 543. (8) A judgment will not be reversed because of the exclusion of merely cumulative testimony. Bank v. Tuttle, 144 Mo.App. 294; Gideonson v. Railway, 129 Mo. 392. (9) General objections to evidence, when overruled, present nothing for review. Springfield v. Owen, 262 Mo. 92; Gayle v. Mo. Car. & F. Co., 127 Mo. 477; Primm v. Raboteau, 56 Mo. 407. (10) A party or witness charged with inconsistent conduct may always explain it. 16 Cyc. 956, tit. Evidence; 1 Greenl. Ev. (16 Ed.) 325, sec. 195a.; 1 Wigmore on Ev., 362, sec. 281; 2 Wigmore on Ev., 1089, sec. 952; Macy v. Railroad, 35 Minn. 200; State v. Mallon, 75 Mo. 355; State v. Harris, 232 Mo. 317; State v. Reed, 89 Mo. 168; State v. Marcks, 140 Mo. 656; Redmond v. Piersol, 39 Mo.App. 173; Carder v. Primm, 52 Mo.App. 102.
BECKER, J. (after stating the facts as above).--
The main point relied upon by plaintiff in error is that there was no evidence of the plaintiff having been injured in the collision and that therefore the court erred in overruling defendant's demurrers offered at the close of plaintiff's case and again at the close of the whole case. Counsels' argument in support of this contention is that according to all the evidence plaintiff's arthritis was due to a germ condition and that this condition could be the result of disease; further that since germs could not be introduced into the system by trauma excepting through a break in the skin, and no proof having been adduced that plaintiff's skin was broken at the time of his fall due to the accident, that the most favorable view that could be taken of the testimony was that plaintiff's condition could possibly have been caused by a fall or could...
To continue reading
Request your trial