Detrich v. Metropolitan St. Ry. Co.

• Decision Date: 03 June 1907
• Parties: DETRICH v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

102 S.W. 1044

125 Mo. A. 608

DETRICH v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

June 3, 1907.

1. EVIDENCE—OPINION EVIDENCE—PHYSICAL CONDITION.

In an action for injuries caused by being thrown from a street car, a physician, when asked in what condition he found the injured party the next day, stated: "I found him pretty badly shook up and bruised up. * * * He was suffering in the hip and back, and generally shook up. * * *" Held, that the statement that the person was suffering in the hip and back was not incompetent as being based on hearsay or mere opinion.

2. DAMAGES — PHYSICAL INJURY — QUESTION FOR JURY.

In an action for injuries caused by being thrown from a street car, evidence that plaintiff's suffering from rheumatism was occasioned by the injury examined, and held sufficient to go to the jury on the question of damages.

3. SAME—PLEADING—ALLEGATION OF EXPENDITURE.

In an action for personal injuries, an allegation in the petition, which, after stating the injuries, concluded with the words, "and by reason thereof he has been compelled to expend $____ for medicine and medical attention"— is a sufficient allegation that expenditures were made.

4. TRIAL—INSTRUCTIONS — APPLICABILITY TO PLEADINGS.

Where, in an action for personal injuries, the petition did not allege that the injured person was suffering from rheumatism prior to the injury, but alleged that he became afflicted with it as a result of the injury, and evidence that he had suffered with it prior to the injury was introduced without objection that it was not proper under the petition, it was not error for the court to instruct the jury on allowing damages for rheumatism if the injury contributed to a continuation of that affliction.

5. SAME—REQUESTS—REFUSAL—REPETITION.

It was not error to refuse an instruction which was to all practical purposes a mere repetition of one which was given.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by John E. Detrich against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas and Chas. A. Loomis, for appellant. Walsh & Morrison and Holmes & Page, for respondent.

ELLISON, J.

This action was instituted to recover damages for personal injuries alleged to have been received through the negligence of the defendant. The plaintiff recovered judgment in the trial court.

The injury, according to the plaintiff's petition and evidence in his behalf supporting it, was occasioned by the sudden and violent stopping of the car caused by its coming in contact with an obstruction in the track. The evidence tended to show that, when the car struck the obstruction, it was with such force that plaintiff was thrown over the dashboard off of the car and onto the street, which was paved with stone. It further tended to show severe injuries added to by resulting in painful rheumatism. Objection is taken to a part of the evidence of the physician who attended upon plaintiff. Upon being asked in what condition he found plaintiff on the next day when he was called to see him, he answered: "I found him pretty badly shook up and bruised up. I believe the only place the skin was knocked off in particular was his left knee, the kneecap, the left kneecap. But he was suffering in the hip and back, and generally shook up (like a man would be, you know, if he was thrown and landed on the paving)." That part of the answer in parenthesis was stricken out by the court. But the part in italics is objected to as being necessarily beyond the knowledge of the witness, and that it must have been based on hearsay; that is, on what plaintiff told him. The objection is not well taken. We cannot say from the face of the answer that it was hearsay. Nor can we say that it was based on mere opinion as distinguished from knowledge. There are various ways in which a physician ascertains with all reasonable degree of certainty, where and how a patient is suffering pain. It may be that a part of his knowledge has come from statements of the patient. If statements are made to him, he is supposed, as a careful and skillful practitioner, to verify them and to come to his conclusions of fact from his entire examination and observation. He, in common with all other witnesses, may be mistaken, but that does not affect the admissibility of the evidence. Cross-examination may disclose that the statement is not worthy of much weight; but, again, that does not affect...