De Courcy v. Prendergast Construction Company
| Decision Date | 08 June 1909 |
| Citation | 120 S.W. 632,140 Mo.App. 169 |
| Parties | GEORGE T. De COURCY, Respondent, v. PRENDERGAST CONSTRUCTION COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Geo. H. Shields Judge.
AFFIRMED nisi.
Judgment affirmed.
A. R and Howard Taylor for appellant.
(1) The trial court erred in failing to sustain the instruction asked by this appellant at the close of plaintiff's evidence and such error was not cured by the evidence for the defendant. A party seeing an obstruction or danger in a street, as in this case, there lawfully, is negligent as a matter of law in undertaking to pass through or under it without proper investigation, and does so at his peril. He knowingly chose a way obviously unsafe and should not recover. Kohn v. Kansas City, 108 Mo. 392; Wheat v. St. Louis, 179 Mo. 581. (2) The court erred in allowing the witness, Dr. Walker, to give in evidence the plaintiff's statements with regard to his condition, suffering and ailments. A physician can not even consider a narrative of a past condition made by the patient in giving his opinion as an expert as to the extent and nature of an injury or ailment of the patient. Gibler v. Railroad, 132 Mo.App. 104. This case reviews the authorities on this question and announces as the correct rule, that statements by the patient as to his present condition may be given in evidence as a basis for the opinion of an expert. Such statements as to a past condition can not be considered properly by an expert in giving his opinion. Holloway v. Kansas City, 184 Mo. 38. (3) The verdict was grossly excessive without the element of the alleged impairment of plaintiff's virility. (4) The instruction given by the court at the instance of the defendant, erroneous in that it does not limit the amount to be recovered for "medical care and treatment" to the amount claimed in the petition. This instruction is erroneous and prejudicial in the following particulars: 1st. The instruction fails to limit the amount to be recovered on account of any moneys paid out for medical care and treatment to the amount claimed in the petition, to-wit, $ 150, but allows the jury to return a verdict for any sum so paid out for medical care and treatment, and this error is not cured in this case by the remittitur in the trial court, because there is no way of ascertaining what amount the jury may have awarded for this element of damages. Smoot v. Kansas City, 194 Mo. 513. 2nd. There is no charge or claim in the petition that any of the alleged injuries sustained by the plaintiff were permanent, except those to his spine and nervous system. Yet this issue is submitted to the jury, and under this instruction the jury may have found some other one of these injuries were permanent. Instructions submitting to the jury the elements of damages to be considered by the jury "should not in any case go beyond the petition." St. Louis v. Kansas City, 110 Mo.App. 655. In an action for personal injuries an instruction is erroneous which submits to the jury an element of negligence not alleged in the petition. Browning v. Railroad, 118 Mo.App. 458. Instruction presenting issues not within the pleadings is erroneous. Veatch v. Norman, 109 Mo.App. 375. Such instruction is reversible error. Barton v. Covering Co., 113 Mo.App. 466; Politoartz v. Citizens Tel. Co., 115 Mo.App. 60.
Richard F. Ralph, P. H. Cullen, Thos. T. Fauntleroy and Shepard Barclay for respondent.
(1) The case was properly submitted to the jury. Defendant was bound to use ordinary care to keep the sidewalk and street, where its work was in progress, in a condition of reasonable safety for the passing public, including plaintiff. It was admitted that defendant's agents and employees placed on the sidewalk the rail which tripped plaintiff and caused him to fall and be injured. Reeves v. Larkin, 19 Mo. 192; Chicago v. Robbins, 2 Black 429. Defendant would also be clearly liable for its negligence even if the city may likewise have been responsible. Any one who directly contributes to cause such an injury is liable to the victim for all the consequences thereof. Newcomb v. Railroad, 169 Mo. 430; Harrison v. Light Co., 195 Mo. 623; Bragg v. Railroad, 192 Mo. 360. (2) Plaintiff was not guilty of negligence as a matter of law, as the circumstances demonstrate. The "buckets" or cans hanging over the sidewalk, the inky darkness, and the other res gestae should all be considered. The plaintiff had no reason to expect such a snare for his feet. His conduct was for the jury to determine as careful or negligent, and they properly decided it to be such as a person of ordinary prudence would exercise in the same circumstances. There was no error in submitting that issue to the jury. Lindsay v. City, 195 Mo. 166; Wiggin v. City, 135 Mo. 558; Bassett v. City, 53 Mo. 290; Merrigan v. Railroad, 154 Mass. 189; Sherry v. Railroad, 104 N.Y. 652. (3) Expressions of pain or other declarations to a physician, regarding the condition of a patient, "of the nature, symptoms and effects of the malady," are admissible evidence, and are, in reality, parts of the res gestae of the ailment itself. Marr v. Hill, 10 Mo. 321; Wardlow v. Perryman, 27 Mo. 279; Insurance Co. v. Moseley, 8 Wall. 397; Harriman v. Stowe, 57 Mo. 93; 1 Greenl., Evid., sec. 102. (4) The point urged in regard to the testimony of Dr. Raines is founded on an erroneous view of that testimony. The matter criticised had been previously admitted without objection, which should dispose of that assignment of error. McCaffrey v. Railroad, 192 Mo. 154. This rule is so widely extended as to include even incompetent testimony so admitted. Hickman v. Green, 123 Mo. 173. An objection to testimony given on a question put without objection after the objecting party has thus taken the chance of a favorable answer, is too late and should not be sustained. Maxwell v. Railroad, 85 Mo. 106; Foster v. Railway, 115 Mo. 182. (5) The verdict is not excessive. It is founded on only three elements of damage: (a) Physical or mental pain and suffering; (b) Expenses paid for medical care and treatment as shown "from the evidence;" (c) Permanent injury, if any, including loss of virility, if found. It is idle to argue, at any length, the amount of this verdict for $ 4500 when the jury has found such injuries as are described to have directly resulted from defendant's negligence. (6) The omission to mention a limit of $ 150, as to recovery for expenses of medical care and treatment, was immaterial, since the instruction directs the jury to find for plaintiff only for such expenses "as you believe from the evidence" became necessary, etc. The "evidence," without dispute or contradiction, showed by items the precise figures paid for said medical expenses to be $ 108. As these items were by the instruction the only ones allowable, and were definite, certain and within the $ 150 claimed by the amended petition, there could be no possible harm, prejudice or error in the instruction on that point. Hannon v. Transit Co., 102 Mo.App. 222. The cases cited for appellant all involve elements which are indefinite and uncertain in nature or amount; and therein is a vital distinction from the case at bar. (7) Moreover, the said instruction is "entirely correct." If it had said (as to the item of medical care) "not exceeding $ 150," it would have been challenged as erroneous in "authorizing a recovery for that sum for medical care and treatment," when the testimony (as above) only warranted recovery of $ 108. But as it reads, it is right. Heiberger v. Telegraph Co., 113 S.W. 730; Carter v. Baldwin, 107 Mo.App. 227; Gorham v. Railroad, 113 Mo. 410. If defendant imagined that the jury might sail beyond the evidence, in an improper search for larger figures on this phase of the case, defendant should have asked a further instruction on that point. As the one given stood, it was correct. Carter v. Baldwin, 107 Mo.App. 227; Gorham v. Railroad, 113 Mo. 410; Browning v. Railroad, 124 Mo. 55.
Plaintiff asks damages for a personal injury alleged to be traceable to defendant's negligence. It was suffered in a stumble over an iron rail extended across the sidewalk on the west side of Tower Grove avenue in the city of St. Louis. The rail was four inches wide at the base, three and one-half inches high and at an elevation of eight inches above the surface of the walk. Defendant was engaged in excavating a sewer in an alley midway between Norfolk and Swan avenues, east and west thoroughfares, and intersecting Tower Grove avenue, a north and south thoroughfare. A machine called a "tower wagon" from fourteen to sixteen feet long and nine to ten feet high was used in the work. No description imparting a clear notion of this machine is given in the testimony, but we learn the tower wagon, or some part of it, was moved by steam power forward and backward in the alley, on two rails which extended across the sidewalk of Tower Grove avenue, as said, eight inches above the walk. Connected with the tower wagon and overhanging the sidewalk six or seven feet above it, were large cans used to hoist and carry the dirt taken out of the sewer trench. The tower wagon, boiler and engine stood in the driveway of the street nearer the east than the west side, but leaving plenty of room for a wagon to drive between them and the east curb. A street lamp stood on that side of the street a foot or two north of the alley, but the light from this lamp was intercepted by the engine, boiler and tower wagon standing in the street some ten feet from the west curb, and instead of a pedestrian on the west sidewalk being helped by the light in crossing the alley, he passed into the shadow cast by said machinery. The accident happened around...
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