Fulton v. Metropolitan Street Railway Company

• Decision Date: 06 May 1907
• Citation: 102 S.W. 47,125 Mo.App. 239
• Parties: MARY D. FULTON, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

102 S.W. 47

125 Mo.App. 239

MARY D. FULTON, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 6, 1907

Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.

AFFIRMED.

Judgment affirmed.

John H Lucas, Charles A. Loomis and Ben F. White for appellant.

(1) (a) The court erred in the admission of the testimony of Creta M Fulton, in which the witness compared the ability of plaintiff to "get around" after the injury with the same before the injury. (b) The court erred in the admission of the testimony of Mrs. B. Fitzgerald to the effect that plaintiff "appeared to be suffering." (c) The court erred in the admission of the testimony of Mrs. F. M. Darnall as to the "activity" of plaintiff. Ried v Insurance Co., 58 Mo. 421; Hurt v. Railroad, 94 Mo. 261; King v. Railroad, 98 Mo. 235. (2) The court erred in the rejection of the testimony of defendant's witness C. G. Baird as to why and how he remembered that plaintiff walked off the car while it was in motion. This was the principal issue in the case, and the portion of the testimony rejected would have had great probative force with the jury in convincing them of the truth of the witness' statement. Wigmore on Evidence, secs. 655, 730; State v. Fox, 25 N. J. L. 602; Angell v. Rosenbury, 12 Mich. 257; Dickson v. Bamberger, 107 Ala. 293; Tomlinson v. Derby, 43 Conn. 562; Kendall's Ex'rs v. Collier, 97 Ky. 446, 30 S.W. 1002; O'Hagan v. Dillon, 76 N.Y. 173.

Walsh & Morrison, Wash Adams and Charles B. Adams for respondent.

(1) (a) The court properly admitted the testimony of the witness Creta M. Fulton, in which she compared plaintiff's ability to "get around" before and after the injury. (b) The court properly permitted the witness Fitzgerald to testify that plaintiff "appeared to be suffering." (c) The court properly admitted the testimony of the witness Darnall as to the "activity of plaintiff." The above testimony consists of statements of fact, derived in each instance from the witness' personal observation of plaintiff's condition, before and after her injury, and was not in the strict sense of the term opinion evidence. But if classed as opinion evidence, it was clearly within the exceptions to the rule against non-expert opinion evidence and was therefore admissible in evidence. Commonwealth v. Sturtevant, 117 Mass. 122; Heman Con. Co. v. O'Brien, 81 Mo.App. 641; Sampson v. Railroad, 57 Mo.App. 308; 17 Cyc. 34, 87; State v. Harris, 150 Mo. 61; Railroad v. McLendon, 63 Ala. 276; Peterson v. Traction Co., 23 Wash. 615; Railroad v. VanVleck, 143 Ill. 196; Railroad v. Fishman, 169 Ill. 196; Heddles v. Railroad, 77 Wis. 228; Standley v. Railroad, 1 Mo. 203. If error was committed in the admission of such testimony, it was harmless and not reversible error. 71 Cyc. 60; Hoffman v. Railroad, 51 Mo.App. 273. (2) The court properly excluded the testimony of the witness Baird, wherein he stated that he "wondered if she was going to get off when the train was in motion without calling to the conductor to stop." Such secret and uncommunicated thoughts, arising in the mind of a witness, are utterly without probative force and improper to go to the jury for any purpose. State v. Miller, 44 Mo.App. 159; Phares v. Barber, 6 Ill. 271; Dickson v. Bamberger, 107 Ala. 293; Adm. v. Troy, 35 Ala. 184.

OPINION

JOHNSON, J.

Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Judgment was for plaintiff in the sum of twenty-five hundred dollars and defendant appealed.

In the afternoon of January 11, 1902, plaintiff, accompanied by her daughter, became a passenger on a west-bound cable train operated by defendant on the Twelfth street line of its street railway system in Kansas City. From the evidence of plaintiff, it appears that she and her daughter intended to ride to Washington street and there to transfer to a car on the Summit street line, also operated by defendant, and for that purpose, on paying their fare, obtained transfers from the conductor. When the train reached the usual stopping place at the junction of the two lines, it was stopped for the purpose of discharging and receiving passengers. After it came to a standstill, plaintiff and her daughter arose from their seat in the rear car and proceeded with proper expedition to depart. The daughter went first and succeeded in reaching the street in safety, but plaintiff was not so fortunate. While she was in the act of stepping from the last step of the car to the street, the train was suddenly started, with sufficient force to throw her to the street and she was seriously injured. On the part of defendant, the evidence tends to show that plaintiff waited until after the train had started forward and had attained some speed before she attempted to alight. As this conflict in the evidence was resolved by the jury in favor of plaintiff, we will treat as proved the facts most favorable to the cause of action asserted, and unless we should find that prejudicial error was committed against defendant during the progress of the trial, in some of the respects claimed, the judgment will not be disturbed.

The nature and extent of plaintiff's injuries and the results produced by them were made the subject of a sharp contest. Plaintiff claimed that she sustained severe injuries to her head and spine, that two ribs were broken, and that she suffered from a severe displacement of the uterus, all in consequence of the fall caused by defendant's negligence. Her evidence strongly supported all of these claims, but defendant insists that the learned trial judge erred in permitting witnesses who knew plaintiff intimately, both before and after her injury, to testify concerning changes in her personal appearance and activity which followed that occurrence. Her daughter testified:

"Q. How did your mother appear after she was thrown from this car as you have described, with reference to getting about; how did she walk? A. She did not get around so well as she had before; she limped on account of her side hurting her. Q. Now, prior to the time your mother was thrown from this car as you have described, how was she as to being an active person and otherwise? A. Why she was very active for a woman of her age. (Plaintiff was fifty-four years of age.) Q. And how did she appear to be with reference to activity after she was thrown from the car as you have described? A. Well, it was hard for her to get around. Q. Now, have you lived with your mother ever since this time? A. Yes, sir. Q. How has she appeared with reference to activity ever since she got out of the house after that three months? A. Well, she does not get around as well as she did before she was hurt. Q. I will get you to state whether or not since that time, after the three months that you say she was confined to her house, she has given forth any expression of pain? A. Yes, sir. Q. Now, at the time when she gave these expressions I will get you to state whether or not she appeared to be suffering? A. Yes, sir."

Another witness testified:

"Q. How did she look; what was her appearance? A. Well, she was in great pain; her head and her side--Q. How did she appear, Mrs. Fitzgerald; did she appear to be suffering or not? A. Yes, sir; she seemed to be suffering awful, the back of her head and her side. Q. How did she get around as compared to how she did before? A. Always kind of holding her side and walking like she was in pain or seemed disabled. Q. Now did she after this time that you saw her in bed, do her own housework as she did before or not? A. No, sir. Q. I will get you to state between the time after she got up, whether or not she ever appeared to you to be suffering? A. Well, always."

And a third witness testified:

"Q. The objection is to your comparing it. Please don't compare it. Just tell the jury how she is now every day as to activity without any comparison. A. She is not active at all. She can hardly get off and on the car, hardly go upstairs without holding her side."

Defendant, in its brief, thus states the ground of its objection to this class of evidence: "The action of the trial court in permitting witnesses for the plaintiff to testify as to the 'appearance' of plaintiff, before and after the injury; as to whether she could 'get around as well after as before the injury;' as to whether she suffered physical pain or not, and all such questions, was error. This was a mere conclusion or opinion of the witness and was inadmissible in that form and for that reason. 'If the opinion sought is based on no evidence it should be rejected; and if properly founded on evidence that evidence ought to be laid before the jury, the law presuming that they are equally as capable to draw therefrom the correct inferences.'" Authorities cited in support of this contention are: Reid v. Insurance Co., 58 Mo. 421; Hurt v. Railway, 94 Mo. 255 at 261; King v. Railway, 98 Mo. 235; Best on Evidence (Chamberlane), 497.

It will be observed the witnesses were not asked to state, nor did they state, their conclusions or opinions respecting the cause of the alterations in the physical appearance which they observed in plaintiff after her injury, nor of the pain and suffering they say was apparent, nor of the great impairment to her activity, and the question for our determination is: Are these statements of apparent physical deterioration and impairment given by non-expert witnesses to be regarded as mere expressions of opinion and, therefore, inadmissible as evidence, or should they be denominated statements of fact possessing evidential value?

The general rule applicable to non-expert witnesses is that they must state facts and not give their opinions, since the jury,...