Costello v. Kansas City and Kansas City Railways Company
| Decision Date | 13 March 1920 |
| Parties | MARY COSTELLO v. KANSAS CITY and KANSAS CITY RAILWAYS COMPANY, Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Thomas B. Buckner, Judge.
Affirmed.
E. M Harber, M. A. Fyke and A. F. Smith for appellant, Kansas City.
(1) The court erred in refusing to give the instructions asked by the defendant city. (a) No proper notice having been served upon Kansas City, plaintiff was not entitled to more than nominal damage in any event. The service of a proper notice is a condition precedent to the right of a plaintiff to recover in a suit of this kind. Reid v. Kansas City, 195 Mo.App. 457; Jacobs v. St. Joseph, 127 Mo.App. 672. (b) The court erred in refusing to give instruction 14 asked by defendant city. Said instruction submitted the question of whether or not plaintiff was in the exercise of reasonable care. (2) The court erred in giving plaintiff's first instruction. This instruction assumed the facts in controversy in this action. Nolan v. Met. St. Ry Co., 250 Mo. 621. (b) There was no evidence that the photograph was taken at the time of or immediately after the accident. Plaintiff's counsel promised to make such proof, but the promise was not fulfilled. Judgment in the case should therefore be reversed. Root v. K. C. So. Ry Co., 195 Mo. 375, 376. (3) The court erred in permitting plaintiff to testify that as a result of her sprained ankle, she had fallen a number of times since the accident, such evidence being outside of the issues in the case. Hall v. Manufacturers Co., 260 Mo. 371. (4) The court erred in permitting counsel to hand witnesses a photograph and then to ask the witness if the photograph was a correct representation of the conditions as they existed at that time. This practice was improper: (a) It had the vice of leading and suggestive questions. (5) The court erred in permitting a witness for plaintiff to give his own conclusions as to his worthiness of belief. (6) There was no error in giving instructions 12 and 13 on behalf of the defendant city.
Richard J. Higgins and Mont T. Prewitt for appellant, Kansas City Railways Company.
(1) The court erred in giving instruction numbered 2 requested by plaintiff. Siegrist v. Arnot, 10 Mo.App. 206; Merriwether v. Cable Co., 45 Mo.App. 528; Boyd v. Railway, 249 Mo. 130; Bond v. Railway, 122 Mo.App. 214; Brock v. Transit Co., 107 Mo.App. 109; O'Neil v. Blase, 94 Mo.App. 648; Dowling v. Allen, 88 Mo. 293; Bank v. Crandell, 87 Mo. 208; Clark v. Railway, 166 Mo.App. 156; Wilder v. Railway, 164 Mo.App. 121; Arata v. Railway, 167 Mo.App. 91; Detrick v. Railway, 143 Mo.App. 179; Beave v. Transit Co., 212 Mo. 351. (2) The court erred in giving instructions numbered 12 and 13 as requested by defendant city. Fleming v. Railway, 101 Mo.App. 217; Smith v. Sedalia, 152 Mo. 283; Patee v. Wagon Co., 97 Mo.App. 356; Grigsby v. Fullerton, 57 Mo. 309; Bank v. Towson, 64 Mo.App. 97; McAtee v. Vanlandingham, 75 Mo.App. 45; Warder v. Seitz, 157 Mo. 140; Marr v. Bunker, 92 Mo.App. 651; Hamilton v. Crowe, 175 Mo. 634; Mining Co. v. Frankenstein, 179 Mo. 564. (3) The court erred in going to the jury room while the jury was deliberating in this cause, and coercing and forcing the verdict. Lamport v. Aetna Life Ins. Co., 199 S.W. 1022; McPeak v. Railway, 128 Mo. 644; State v. Hill, 91 Mo. 428; McCombs v. Foster, 64 Mo.App. 618; State v. Alexander, 66 Mo. 163; Chinn v. Davis, 21 Mo.App. 365; State v. Campbell, 166 Mo.App. 591. (4) The court erred in refusing to sustain demurrer asked at the close of plaintiff's case, and renewed at the close of all evidence, under the physicalfacts doctrine. Scroggins v. St. Ry. Co., 138 Mo.App. 219; Daniels v. Railways, 177 Mo.App. 281; State v. Turlington, 102 Mo. 663; State v. Bryant, 102 Mo. 32; State v. Anderson, 89 Mo. 332. (5) The court erred in refusing to sustain defendant's motion for new trial and in arrest because of each of the above errors, and for the further reason that the verdict is excessive, and against the weight of the testimony. Young v. Bacon, 183 S.W. 1082; Franklin v. Fisher, 51 Mo.App. 347; Gabriel v. Railway, 164 Mo.App. 60.
W. W. McCanles and Hogsett & Boyle for respondent.
(1) The court did not err in giving instruction number 2, requested by plaintiff. (a) The instruction did not assume the existence of the depression but affirmatively required the jury to find its existence. (b) The instruction affirmatively required the jury to find that the injuries were directly caused by the negligence submitted; and defendant's instruction number 6 expressly required the jury to find the same fact. Bliesner v. Distilling Co., 174 Mo.App. 139; Farmer v. Railway, 178 Mo.App. 594; Pendegrass v. Railway, 179 Mo.App. 534; Crader v. Railroad, 181 Mo.App. 542; Garard v. Coke Co., 207 Mo. 242. (c) The motion for a new trial is insufficient to present for review the giving of any instructions. Surbeck v. Surbeck, 208 S.W. 655; Kansas City Trunk Co. v. Bush, 208 S.W. 626; Disinfecting & Manufacturing Co. v. Bates County, 273 Mo. 304; Lampe v. United States Ry. Co., 202 S.W. 438; Nitchman v. United Rys. Co., 203 S.W. 491; Probst v. St. Louis Box Co., 207 S.W. 891; Stretch v. City of Lancaster, 206 S.W. 390. (2) The court did not err in giving the instructions number 12 and 13 requested by the defendant city. (a) Defendant Railways Company cannot assign error in instructions given for its co-defendant, the city. O'Rourke v. Lindell Railway Co., 142 Mo. 352; Souther Iron Co. v. Realty Co., 175 Mo.App. 246; Doster v. Railroad Co., 158 S.W. 440. (b) Instruction 12 contains no error against the Railway Company. (c) Instruction 13 contains no error against the Railway Company. Since the defendants were bound by different rules of duty, the jury might possibly have found for the city and against the Railway Company. But since the jury found both defendants liable, it follows that instruction 13 could not possibly have had any effect upon the verdict at all. (3) The court did not coerce the verdict. (a) Defendants could not preserve the point for review by affidavit filed with the motion for a new trial, but only by the bill of exceptions; and there is no such point preserved in the bill of exceptions. Lemmons v. Robertson, 164 Mo.App. 85; Sperry v. Hurd, 151 Mo.App. 583; Harless v. Ry. Co., 123 Mo.App. 22; Miller v. Engle, 185 Mo.App. 560. (b) Even if the facts stated in the affidavit were preserved by the bill of exceptions, it is evident that the trial court did not coerce the verdict. McPherson v. Railway Co., 97 Mo. 260; Fairgrieve v. City of Moberly, 29 Mo.App. 141. (4) The trial court properly overruled the demurrer to the evidence. The plaintiff's version of the injury is not opposed to the physical facts, but is in accord therewith. Middleton v. Power Co., 196 Mo.App. 258; Allen v. Street Railways, 188 Mo.App. 200; Benjamin v. Street Ry. Co., 245 Mo. 598; Gillogly v. Dunham, 187 Mo.App. 557; Warnke v. Rope Co., 186 Mo.App. 42. (5) The verdict is not excessive. Lorton v. Wabash, 141 S.W. 478; Biggie v. Railroad, 140 S.W. 602; Dent v. Traction Co., 145 Mo.App. 61; Harris v. Street Ry. Co., 168 Mo.App. 336; Brown v. City of Carthage, 189 Mo.App. 333. (6) The court did not err in refusing to give instructions 16 and 14. (a) Instruction 16 was properly refused because the suit was brought, and the summons served upon the city, and answer filed by the city, all within ninety days from the date of the injury, and the necessity of serving the formal notice required by statute was dispensed with. Morrill v. Kansas City, 179 S.W. 759. (b) Instruction 14 asked by the city was properly refused because it was a comment upon the evidence of the plaintiff. Meyers v. Railroad Co., 171 Mo.App. 283; Richardson v. Street Ry. Co., 166 Mo.App. 162; Dungan v. Railroad Co., 178 Mo.App. 164. (7) The court did not err in permitting counsel to ask witness if the photographs in evidence were correct representations of the conditions as they existed at the time of the injury. The matter of asking leading questions is within the discretion of the trial court and is never a cause for reversing a judgment. State v. Shoemaker, 183 S.W. 322; State v. Steel, 226 Mo. 583; State v. George, 214 Mo. 262. (8) The court did not err in permitting plaintiff to testify that the condition of her ankle had caused her to fall a number of times since the injury. The petition alleged that she would for all time be a cripple, and the evidence complained of was within that allegation. Rearden v. Railroad, 215 Mo. 134; Foster v. Rys. Co., 183 Mo.App. 602; Lyons v. Street Rys. Co., 253 Mo. 143; Cossitt v. Railways Co., 224 Mo. 97; Reynolds v. Ry. Co., 180 Mo.App. 138. Defendant did not object until after the questions were answered, and the objection therefore came too late. Osborne v. Railway Co., 144 Mo.App. 119; Utz v. Insurance Co., 139 Mo.App. 552; Stiller v. Railway Co., 141 S.W. 483; Lowenstein v. Railway Co., 134 Mo.App. 24. (9) The court did not err in permitting the witness to testify to the nature of his occupation. His occupation was competent evidence as to his character and credibility, and the testimony was admissible on that ground.
The plaintiff recovered judgment against both defendants in the Circuit Court of Jackson County, in the sum of two thousand dollars for personal injuries. The case was appealed to the Kansas City Court of Appeals, where the judgment was affirmed, and afterwards, on motion for rehearing, certified to this court, because the opinion was considered by that court to be in conflict with the opinion of this court in the case of Mathieson v. Railroad, 219 Mo. 542.
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