Fullerton v. Fordyce

• Decision Date: 03 November 1897
• Parties: FULLERTON v. FORDYCE et al.
• Court: Missouri Supreme Court

44 S.W. 1053

144 Mo. 519

FULLERTON v. FORDYCE et al.

Supreme Court of Missouri, Division No. 1.

November 3, 1897.

CARRIERS — NEGLIGENCE — PERSONAL INJURIES — DAMAGES — EXCESSIVENESS OF VERDICT — EXPERT TESTIMONY — CONDUCT OF TRIAL — INSTRUCTIONS — APPEAL — REVIEW.

1. In granting leave to plaintiff, over defendant's objection, to introduce physicians appointed by the court on the suggestion of the supreme court and at defendant's request, for the purpose of examining plaintiff's injuries, the court said, in the presence of the jury: "The supreme court has indicated in this case that it would like to have this court appoint a commission. I have done so in response to that, and I will permit the commission to testify." Held, that the remarks were not improper.

2. Allowing plaintiff, after defendant had rested, and over his objection, to introduce as witnesses a committee of physicians appointed by the court at defendant's request to examine plaintiff's injuries, is not an abuse of discretion as to the order of admitting testimony.

3. If both defendant, at whose request a commission of physicians has been appointed by the court to examine plaintiff's injuries, and plaintiff, refuse to call such physicians, the court has the right so to do.

4. A physician appointed by the court as one of a committee to examine plaintiff's injuries, is not necessarily biased because of a former examination of such injuries at the request of plaintiff.

5. Where the witness, a physician appointed by the court to examine plaintiff's injuries, stated that he had, previous to his appointment, made an examination of said injuries at plaintiff's request, and was then allowed to testify without objection by defendant, defendant cannot urge on appeal that the witness was, for that reason, biased.

6. When by the breaking of a plank in a station platform, a hole six feet long and eight inches wide was made, which, though it could be repaired in a few minutes, was left four days unmended and unguarded, the railroad company was guilty of negligence, as a matter of law, as against a passenger injured thereby.

7. The jury may consider the professional learning, skill, and experience of expert physicians, and whether the opinions expressed by them are supported or refuted by other testimony in the cause.

8. The qualification of an expert to testify cannot be raised by an instruction directing the jury as to the weight to be given such evidence.

9. A sufficient basis for the opinion of an expert is established when the evidence "tends" to prove all the facts on which the opinion is hypothecated.

10. An instruction that, if the jury found plaintiff suffered physical injury, they might, in estimating the damages, "take into consideration and account * * * his bodily and mental pain, if you believe from the evidence such is the fact," while not entirely clear, must be construed as limiting the jury to the allowance of damages for such pain as plaintiff actually suffered.

11. While an injured person should use ordinary and reasonable care to prevent an aggravation of his injury, he is not required to take "proper and immediate steps" to have his condition improved, in order to recover damages therefor.

12. A verdict for $13,500 does not show conclusively passion, prejudice, or sympathy of the jury, where plaintiff suffered from incontinence of urine, permanent and progressive injury of the spine, insomnia, impairment of memory, loss of sexual powers, and hernia, all of which was caused by the injury complained of.

13. An appellate court has no power to interfere with the result of a trial for the sole reason that the verdict appears to be larger than is justified by the evidence.

Appeal from circuit court, Scott county; H. C. O'Bryan, Special Judge.

Action by James M. Fullerton against S. W. Fordyce and others, receivers of the St. Louis, Arkansas & Texas Railway Company. From a judgment for plaintiff, defendants appeal. Affirmed.

Sam H. West and W. H. Miller, for appellants. Wilson Cramer, for respondent.

MACFARLANE, J.

This is an action to recover damages on account of personal injuries received by plaintiff through falling into a hole in the platform of defendant at its station at New Madrid, Mo. The ground of the action is negligence in not maintaining the platform in a reasonably safe condition, by reason of which, on leaving a train at said station upon which he was a passenger, plaintiff fell into a hole, and was injured. The answer was, in substance, a general denial, and a plea of contributory negligence. The evidence tended to prove the negligence charged, and the injuries sustained thereby. The trial resulted in a verdict and judgment for plaintiff for $13,500, from which defendants appealed.

This is the second appeal. The result of the first will be found reported in 121 Mo. 7, 25 S. W. 587. A number of questions disposed of on the first appeal have been reargued, but on these questions we see no reason for changing the views expressed on the former hearing, and will not reconsider them. After the case had been remanded, in pursuance of a suggestion of this court, defendants applied to the circuit court for the appointment of a commission of competent and disinterested physicians to make a physical examination of plaintiff with a view of ascertaining the character and extent of his injuries. In compliance with the application, the court appointed Drs. Harris, Tomlinson, and Fraser to make the examination. Dr. Harris declining to act, an examination was made by the other two. In the trial the parties examined, as expert witnesses, physicians called by themselves, respectively, but neither party called as witnesses those who had made an examination of plaintiff, under the order of the court, until after defendant had closed his defense. At this stage of the proceedings plaintiff was allowed, over defendants' exception, to introduce and examine these witnesses. In granting the leave the court remarked in the presence of the jury: "The supreme court has indicated in this case that it would like to have this court appoint a commission. I have done so in response to that, and I will permit the commission to testify." Defendants now insist that the court committed prejudicial error in permitting plaintiff to examine these witnesses out of their regular order, and that the remarks of the court made in the presence of the jury were improper and prejudicial.

There was no reversible error in permitting plaintiff to examine these witnesses out of their regular order. The circuit court have a very broad discretion in regard to the order of admitting testimony, and their discretion will not be interfered with unless it clearly appears to have been abused. There was no abuse of discretion in this instance. These witnesses had made a physical examination of plaintiff, under an order of court, with a view of ascertaining the character and effect of his injuries. They were appointed at the request of the defendants, who neglected to use them as witnesses. In the circumstances the court properly allowed plaintiff to introduce them after defendants had declined to do so. By the course adopted defendants secured the advantage of a cross-examination of witnesses who had ascertained facts under an order of court made at their request, and they have no just ground to complain. Neither does it appear that the remarks of the court on admitting the testimony could have been prejudicial. The commission was appointed by an order of court, which was a matter of public record. The appointment was made at the request of defendants for the purpose of eliciting the truth and in furtherance of justice. The information given by the court went no further than to advise the jury that the witnesses had made a physical examination of plaintiff by its direction, — a fact which either party had the right to elicit from the witnesses themselves. Surely, defendants, at whose request the commission was appointed, should not complain of the information the jury incidentally acquired from the remarks of the court. Parties calling for such an examination must take the chances of the results. The experts who made the examination became the witnesses of the court, rather than of the parties to the action; and, if the parties refused to call them, the court had the right to do so, in which case greater credit would have been given them than was given by the remarks complained of.

2. It appears that Dr. Fraser, a member of the commission, had, at the request of plaintiff, previously made an examination of his injuries. It is insisted that the doctor could not, in the circumstances, have been wholly unbiased and disinterested. We do not think the conclusion necessarily follows. We must assume that the court was advised of the character, professional standing, and learning of Dr. Fraser, and was...