Daniels v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 08 January 1916
• Docket Number: No. 1511.,1511.
• Citation: 181 S.W. 599
• Parties: DANIELS v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

181 S.W. 599

DANIELS v. ST. LOUIS, I. M. & S. RY. CO.

No. 1511.

Springfield Court of Appeals. Missouri.

January 8, 1916.

Appeal from Circuit Court, Ripley County; J. P. Roard, Judge.

Action by Corrine Daniels against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

Jas. F. Green, of St. Louis, and N. A. Mozley, of Bloomfield, for appellant. Chas. B. Butler, of Doniphan, for respondent.

ROBERTSON, P. J.

As the result of a jury trial plaintiff obtained a judgment of $500 against the defendant, and it has appealed.

The plaintiff, on December 3, 1912, was a passenger on one of defendant's passenger trains, and as it approached the station at Neelyville and was slowing down for a stop there, the auditor came through the coach in which the plaintiff was riding, and remarked to her, "Here's where you get off; come on." She followed him to the open door of the car, and as she placed her hand upon the door jamb to steady herself, there was a sudden jerk, and the door became released from the catch used to hold it open and flew shut, catching and injuring two of her fingers, the little finger and the one next to it. The jerk also threw her down. In one place it is said the bone of one finger was fractured, and in another place it is said that her hand was in a plaster of paris cast until "along just before Christmas." She testified that the train made a very unusual and rough stop for a passenger train. Another witness testified to the unusual motion of the train. As to the result of the injury she testified that she could not grip anything with her hand, as she did before it was mashed, and that one of the nails of her finger "is torn and doesn't have any shape to it any more." She also says that her health was better before the accident than it has been since; that she had no nervous troubles before the accident, but has suffered considerable since. The allegations in her petition concerning the effect of her injuries are as follows:

"Plaintiff says that by reason of said injuries she has suffered great pain in body and mind, that she received such a severe shock to her nervous system that she has not fully recovered, and her health has been permanently impaired, and has necessarily expended large sums for physicians and medicines."

At the close of the testimony the defendant requested a directed verdict, which was refused, and then the court instructed the jury in behalf of the plaintiff, so that they were authorized, doubtless through an oversight by the trial judge, to find "that her health has been impaired," and also in behalf of defendant the jury was instructed:

"That there is no testimony in this case that the plaintiff sustained any permanent injury to her health as the result of getting her fingers mashed on the 3d day of December, 1912, at Neelyville, Mo."

It is first contended by the defendant that the testimony about the character of the stop made should not have been admitted, because the witnesses, it is charged, did not properly qualify as experts. Testimony of this character hardly comes within the rule of expert testimony. It is that character of proof which can be made only by eliciting the opinion of the witnesses, and if the witness has had that experience which qualifies him to form a reasonably accurate opinion, then that opinion may be given to the jury, because in this way only can the idea be conveyed to them. It would be impossible for the witness to so detail the movements of the train as to enable the jury to determine whether or not the movement of the train complained of by the plaintiff was an unusual one. The plaintiff had ridden upon trains considerably, and the other witness who testified had at one time traveled on the train as a news agent, and each of them had sufficient experience and means of observation as qualified them for expressing an opinion as to whether or not the movements of the train were unusual. This character of testimony is fully discussed, and the authorities reviewed in Stolter v. Chicago & Alton Ry. Co., 200 Mo. 107, 123, 98 S. W. 509 et seq.; Lorenzen v. United Railways Co., 249 Mo. 182, 188, 155 S. W. 30; Farmer v. St. Louis, Iron Mountain & Southern Ry. Co., 178 Mo. App. 579, 588, 161 S. W. 327.

The defendant next asserts that it was the duty of the plaintiff to occupy one of the seats provided for passengers, and if she left her seat while the train was in motion, receiving her injuries as a result thereof, she cannot recover. This is not borne out by the authorities or sound reason. That there are instances in...