Dean v. Wabash R. Co.

• Decision Date: 22 June 1910
• Citation: 129 S.W. 953,229 Mo. 425
• Parties: DEAN v. WABASH R. CO.
• Court: Missouri Supreme Court

129 S.W. 953

229 Mo. 425

DEAN v. WABASH R. CO.

Supreme Court of Missouri, Division No. 1.

June 22, 1910.

1. EXCEPTIONS, BILL OF (§ 24)—NUMBER— STATUTES.

Rev. St. 1899, § 728 (Ann. St. 1906, p. 720), provides that all exceptions taken during the trial of a cause or issue before the same jury shall be embraced in the same bill of exceptions. Held, that such section does not forbid the signing and filing of more than one bill of exceptions during the term, and hence the fact that defendant, after the overruling of its motion to strike out parts of the petition and to compel plaintiff to submit to the taking of X-ray photographs, filed a bill of exceptions preserving such rulings, did not prevent it from obtaining another separate bill to preserve exceptions taken during the trial.

2. PLEADING (§ 364)—STRIKING OUT MATTER —ALLEGATIONS AS TO DAMAGES.

In an action for injuries to a passenger, an allegation of the character of plaintiff's business and his personal capacity for conducting it as shown by previous successful operations, was not subject to a motion to strike, though plaintiff was not entitled to have the jury consider profits they might conjecture he would have derived from the prosecution of his business had he not been injured, the value of his time being a proper subject for the jury's consideration as to which such allegation was relevant.

3. DAMAGES (§ 206) — PHYSICAL EXAMINATION —X-RAY PHOTOGRAPHS.

It was not error to refuse to require plaintiff in an action for injuries to submit to the taking of an X-ray photograph of the injured portion of his body, the court being advised that sometimes persons subjected to such process were injured thereby.

4. EVIDENCE (§ 558)—EXPERTS — CROSS-EXAMINATION.

Where defendant's experts were asked to give opinions as to plaintiff's injury based on objective symptoms they had found on physical examination, and on facts testified to by other witnesses, the court properly allowed plaintiff on cross-examination to add to such hypothetical questions certain subjective symptoms to which plaintiff had testified and ask for an opinion based on such additional hypothesis.

5. EVIDENCE (§ 555) — MEDICAL EXPERTS— "OBJECTIVE SYMPTOMS" AND "SUBJECTIVE SYMPTOMS."

Objective symptoms are those which the surgeon discovers from a physical examination of his patient, while subjective symptoms are those he learns from what his patient tells him.

6. EVIDENCE (§ 558)—EXPERT TESTIMONY— CROSS-EXAMINATION—PHYSICIANS.

Where a physician appointed by the court to examine plaintiff testified in chief for defendant that he had obtained from plaintiff a full history of the case, he was properly allowed to state on cross-examination what plaintiff had told him concerning the accident down to the time of the examination.

7. DAMAGES (§ 43) — PERSONAL INJURIES — BOARD OF ATTENDANCE.

Where after plaintiff was injured in a wreck he was taken to a hotel where he was attended gratuitously by his sister and cousin, the cost of their board at the hotel while nursing plaintiff was a legitimate item of expense incurred in consequence of plaintiff's injury.

8. EVIDENCE (§ 359)—X-RAY PHOTOGRAPH.

Where an X-ray photograph was taken of plaintiff's femur and was properly proved to have been correct, it was admissible as a memorandum to assist an expert in testifying as to plaintiff's condition and to illustrate the scientific explanation of the witness.

9. TRIAL (§ 62)—RECEPTION OF EVIDENCE— REBUTTAL.

Where, in an action for injuries to a passenger, alleged to consist of a fracture of the femur, defendant's expert had testified that in case of such a fracture the foot would turn in or out, evidence that plaintiff's right foot, after the injury, was inclined to turn out, and that a pillow was kept under his knee and between his legs when he was turned on his left side, was proper rebuttal.

10. EVIDENCE (§ 471)—CONCLUSIONS.

Where plaintiff on being asked if he experienced any difficulty after his injury in pursuing his ordinary vocations, and if so what, answered that before he was hurt he could take hold and push any ordinary business, but now he had to tell others to go, that he could not stack hay, or plow, either walking or riding, that he wore out and got tired, such answer was not objectionable as stating conclusions.

11. DAMAGES (§ 158)—PERSONAL INJURIES— ISSUES AND PROOF.

Where plaintiff's petition charged that his back was bruised, wrenched, and greatly injured, it was sufficient to justify evidence that plaintiff had a fracture of a spinous process of the vertebra.

12. WITNESSES (§ 268)—CROSS-EXAMINATION —WEIGHT OF EVIDENCE.

Where, in an action for injuries to a passenger, the conductor testified that he saw plaintiff after the accident, and saw two men putting his overshoes on while he was standing, and saw him start to the relief train walking between two men, he was properly required to state on cross-examination how many passengers were on the train and how many were injured, as bearing on the amount of attention he gave plaintiff.

13. APPEAL AND ERROR (§ 970)—RULINGS ON EVIDENCE—DISCRETION—REBUTTAL.

A ruling permitting plaintiff in rebuttal to show that his right thigh was atrophied, merely by proving that a physician on measuring it found it smaller than the left, was not such an abuse of the trial court's discretion as to justify reversal.

14. EVIDENCE (§ 548) — QUESTIONS — DEFINITENESS.

Question asked a physician, "If you examine the patient shortly after he has received his injury, and you find crepitation both by using your finger and your ear, what's that a sign of?" was not objectionable as too indefinite as to time.

15. EVIDENCE (§ 559)—EXPERT TESTIMONY— CORROBORATION—CHARACTER OF EXPERT.

Where a physician's reputation had not been questioned, proof to sustain his reputation was properly excluded.

16. EVIDENCE (§ 552)—TEXT-BOOKS—USE BY COUNSEL.

Use of a medical text-book by counsel merely to aid him in forming a question to be propounded to an expert witness was proper.

17. NEW TRIAL (§ 69)—GROUNDS—PERJURY.

In an action for injuries to a passenger, evidence held insufficient to show error in a denial of a motion for a new trial, authorized by Rev. St. 1899, § 800 (Ann. St. 1906, p. 761), for perjury or mistake committed by a witness.

18. TRIAL (§ 116)—ARGUMENT OF COUNSEL— ILLUSTRATION OF ARGUMENT.

Where, in an action for injuries to a passenger, the court charged the jury in estimating his damage to consider his physical condition before and after the injury, the physical pain and mental anguish, if any, suffered by him on account of his injuries at the time and since, as shown by the evidence and loss of time, etc., and to find a verdict for such a sum as in the jury's judgment would reasonably compensate plaintiff for his injuries, it was not error for plaintiff's counsel in argument to assume a hypothetical case in which a verdict was returned for $20,000, and state that the ordinary income on that amount would not bring an annual income as great as plaintiff's strength and health had brought before the accident.

19. DAMAGES (§ 216)—PERSONAL INJURIES— INSTRUCTIONS.

Where the jury was directed to consider the nature and extent of plaintiff's injury and his loss of time, and were told that they could not allow him anything for profits of his business but only reasonable compensation for his time necessarily lost as a result of the injury, and the instruction forbade the allowance of punitive damages or the consideration of possible or even probable consequences of what might happen, a clause in an instruction authorizing an allowance for his loss of time and such damages, if any, as the jury might from the evidence find it reasonably certain he would suffer therefrom, was not objectionable as authorizing damages for loss of time in the future.

20. APPEAL AND ERROR (§ 1033)—INSTRUCTIONS —PREJUDICE.

Where defendant was not entitled to the giving of any part of an instruction, it could not complain of the giving of only a part thereof.

21. DAMAGES (§ 132)—PERSONAL INJURIES— VERDICT—EXCESSIVENESS.

Plaintiff, 38 years old, unmarried and in robust health, weighing about 200 pounds, was injured in a railroad accident resulting as he claimed in a fracture of the femur. He endured great pain for several months and was disabled from following his usual vocations, and more than a year after the injury experienced impairment of the use of his limb. He had, however, to a great extent, recovered, and was able to superintend and direct his business operations. His physicians testified that as time went on he would improve, though he would never entirely recover. The witnesses for defendant thought that plaintiff's injury was slight, and that he had already recovered, but his witnesses thought the injury was serious. Held, that a verdict for $12,500 was excessive, and should be reduced to $7,000.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Action by George M. Dean against the Wabash Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Robertson & Robertson and J. L. Minnis, for appellant. P. H. Cullen, for respondent.

VALLIANT, J.

On February 16, 1906, plaintiff was a passenger in one of defendant's trains going from Columbia to Centralia. When the train had reached a point about 12 miles from Centralia, where the track runs upon an embankment, the coach in which the plaintiff was riding left the track and turned over on its side down the embankment, so that the floor was higher than the roof of the car; the plaintiff was thrown from his seat and fell striking his right hip against the moulding in the roof of the car, receiving severe injuries. He brought this suit against the railroad company for damages, and recovered a judgment for $12,500, from which judgment the defendant has taken this appeal. At the trial the defendant admitted its liability, but contended that the plaintiff was not seriously injured,...