Eidson v. Metropolitan St. Ry. Co.

• Decision Date: 27 January 1919
• Docket Number: No. 13157.,13157.
• Citation: 209 S.W. 575
• Parties: EIDSON v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

209 S.W. 575

EIDSON v. METROPOLITAN ST. RY. CO.

No. 13157.

Kansas City Court of Appeals. Missouri.

January 27, 1919.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by Nancy J. Eidson against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Clyde Taylor, of Kansas City, and L. T. Dryden, of Independence, for appellant.

Hal R. Lebrecht, of Kansas City, for respondent.

BLAND, J.

Plaintiff brought this suit for personal injuries received by her on the 6th day of June, 1911, while a passenger on one of defendant's street cars. She recovered a verdict and judgment in the sum of $3,325, and defendant has appealed.

Defendant's first point is that its demurrer to the evidence should have been sustained, on account of the fact, as defendant says, that the way in which the accident occurred is contrary to common experience and physical laws.

The facts show that plaintiff boarded the rear end of a much-crowded north-bound Summit Street car at Sixteenth and Summit streets, in Kansas City, Mo. On account of the car being crowded, plaintiff stood in the rear of the car, leaning back against the southwest corner of the same, immediately in front of the space traversed by the sliding door, which was open. Her right arm was against the door casing. In order to close the sliding door it had to be moved from east to west. When the car reached Thirteenth and Summit streets, it was going at a rate of 15 miles per hour, and without slackening its speed ran into a sharp curve toward the east, said curve running into Thirteenth street. When the car hit the curve, it caused the door to slide shut against the casing, striking plaintiff's right arm and breaking it at the elbow. The usual speed at which a car went around this curve was from 2 to 3 miles per hour.

It is defendant's contention that It was impossible for the door to have struck plaintiff's right arm, in view of the way in which she was standing. We think there is no merit in this contention. She was not standing directly north, but was leaning back against the corner of the car holding her dress with her right hand. She testified:

"I had my dress on my arm, kind of holding it like that, with my hand back; * * * it just went over the edge of the casing enough for it to catch it."

She stated that her right arm was against the door casing against which the door shut. She further stated that she was not standing facing directly north, but "I was sort of turned just a little north, to throw this right arm over the door casing." When the door struck her elbow, she exclaimed to the conductor that he had broken her arm. A number of witnesses testified to this exclamation on the part of plaintiff. There is nothing contrary to natural laws in the way in which plaintiff claimed she was injured.

This was the second trial of the case. At the first trial plaintiff testified that she had been married but once, and at the second trial she testified that she had been married several times. Defendant says that we should take this circumstance into consideration in connection with its point that the way in which plaintiff claims she was injured is against physical laws. We fail to see any connection, but in any event the weight of the evidence was a question for the jury.

Defendant claims that plaintiff's instruction P-3 was error. The petition asked for damages on account of money paid out for medicines and medical services. Plaintiff's physician testified that his services were worth $250, but that he did a great deal of charity work, and did not expect recompense from plaintiff. Defendant says that in plaintiff's instruction P-3 the jury were permitted to consider medical services as an element of damages. We think there is no merit in this contention. This instruction limited plaintiff's right to recover to damages for her injuries, and whether or not they were permanent, and to bodily pain and mental anguish endured by her, and that she might be reasonably certain to suffer in the future. Under such circumstances the instruction was not erroneous, for it did not include the matter of recompense for medical services. Turley v. Street Ry., 166 Mo. App. 655, loc. cit. 658, 659, 150 S. W. 553. If defendant desired to have withdrawn from the consideration of the jury the testimony of the doctor that his services were worth $250, it should have requested an instruction to that effect.

The court did not err in admitting in evidence Exhibit 1. This exhibit was a memorandum made by plaintiff's physician, showing when plaintiff first called upon him for treatment. The memorandum showed the date at which plaintiff called, her occupation, the diagnosis, and contained the following statement:

"History, direct violence, caught between doors of street car on January 6, '11, between 2 and 3 p. m. Examined her Jan. 7, '11, 11:00 o'clock a. m."

This exhibit was introduced in evidence in connection with the doctor's testimony. Defendant objected to it on the ground that it was only competent to refresh the doctor's memory, that it was not binding on the defendant, and "it is only competent in so far as to fix the date." Counsel for plaintiff stated that the only purpose for which he introduced the exhibit was to fix the date upon which the doctor saw plaintiff, and the court instructed the jury "that is all it is being permitted to be introduced for," and that that part referring to the nature of the injury should be disregarded by them, that it was hearsay, and the witness knew nothing about it. Defendant in its objection admitted it was competent to fix the date upon which the plaintiff saw the doctor. We are unable to see how there was any error in relation to the matter.

The next point made by the defendant is that "the court committed prejudicial error in overruling appellant's objection to a hypothetical question propounded to Dr. Kopf." After detailing a suppositive occurrence based upon the facts disclosed in evidence as to the way in which plaintiff was injured, plaintiff's counsel asked her physician if the condition the physician found in plaintiff's arm "might, could, or would, in your opinion, result from the circumstances I have described to you." The inclusion of the word "would" by plaintiff's counsel was not error. The words "might, could, or would" were the proper ones to use in connection with a hypothetical question of this kind. Taylor v. Railroad, 185 Mo. 239, loc. cit. 256, 84 S. W. 873; State v. Hyde, 234 Mo. 200, loc. cit. 253, 136 S. W. 316, Ann. Cas. 1912D, 191; Moore v. Mo. Pac. Ry. Co., 164 Mo. App. 34, 147 S. W. 488.

Plaintiff's counsel later in connection with the same question again asked the witness "might, could, or would, in your opinion, the condition described have resulted from that violence." (Italics ours.) Defendant contends that the question should have been as to whether the facts detailed in the evidence as to the manner in which ...