Gidionsen v. The Union Depot Railroad Company

• Decision Date: 25 June 1895
• Parties: Gidionsen v. The Union Depot Railroad Company, Appellant
• Court: Missouri Supreme Court

31 S.W. 800

129 Mo. 392

Gidionsen v. The Union Depot Railroad Company, Appellant

Supreme Court of Missouri, First Division

June 25, 1895

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Affirmed.

O. J Mudd for appellant.

(1) The court erred in refusing defendant a continuance on the ground of surprise and in not granting defendant a new trial for the same reason. Upon the introduction by plaintiff of testimony tending to show epilepsy, defendant promptly made known its surprise and asked the court for time to prepare and call counter proofs. Albert v. Teller, 31 Mo.App. 247; Eagan v. Delaney, 16 Cal. 85; Holbrook v Nichol, 36 Ill. 161; Railroad v. Barron, 14 S.W. 698. (2) The court erred in excluding the testimony of F. G. Wachob and other witnesses called for by defendant. Lawson on Expert Evidence, p. 86. (3) The damages were excessive. (4) The trial court should have granted a new trial because of improper remarks of counsel for plaintiff. State v. Reiley, 4 Mo.App. 395; Bishop v. Hunt, 24 Mo.App. 377; State v. Brandenburg, 118 Mo. 187; Ritter v. Bank, 87 Mo. 576.

John A. Gilliam and John W. Drabelle for respondent.

(1) The verdict was not excessive. Welch v. McAllister, 15 Mo.App. 492; 5 Am. and Eng. Encyclopedia of Law, p. 54. (2) The rejection of the evidence of Wachob was proper and if erroneous was harmless and constitutes no ground for reversal. (2) As an expert a witness may give his opinion touching the facts proved or agreed upon, or hypothetically stated in conformity with the evidence in the case. Gas Co. v. Ins. Co., 33 Mo.App. 348; State v. Meyers, 99 Mo. 107; Williams v. Williams, 132 Mass. 304; Scofield v. Walrath, 35 Minn. 356; Robertson v. Railroad, 84 Mo. 119; Brown v. Railroad, 89 Mo. 152; Tingley v. Cowgill, 48 Mo. 291. (3) Case will not be reversed for rejection of testimony when there are other witnesses to same facts. 1 Graham & Wat. New Trials [2 Ed.], p. 255; Edwards v. Evans, 3 East, 451; King v. Teal, 11 East, 307. (3) A judgment will not be reversed in a civil action because of the refusal to admit competent evidence which is merely cumulative. Prickett v. Anchor Line, 13 Mo.App. 436; Clark v. Finn, 12 Mo.App. 583; Miller v. Miller, 13 Mo.App. 591; State v. Maguire, 16 Mo.App. 558. (4) As it was certainly harmless to exclude evidence of how fast 'Frisco trains run, it is not ground for reversal. Gray v. Packet Co., 64 Mo. 47; Davis v. Gitchell, 32 Neb. 792. (5) Defendant is not entitled to a new trial on the ground of alleged surprise at introduction of evidence on the question of epilepsy. The averments of the petition were sufficiently broad to authorize such evidence. A party is not required to state evidence in his pleading or to disclose therein the means by which he intends to prove his case. R. S. Mo. 1889, sec. 2060; Kerr v. Simmons, 82 Mo. 275. Plaintiff may give in evidence any fact that shows the extent of his damages, down to the time of trial. Mosely v. Hunter, 15 Mo. 330; Lowry v. Walker, 5 Vt. 181; Joliet v. Conway, 119 Ill. 489. Where a motion for new trial is based upon the ground of suprise at the trial, the statement is required in the affidavit in support of such motion that the verdict was unjust, and that defendant had a meritorious defense. Culbertson v. Hill, 87 Mo. 553; Kaulleen v. Tillman, 69 Mo. 510; Campbell v. Buller, 32 Mo.App. 646. (6) A new trial should not be given defendant, because of alleged improper remarks of counsel for plaintiff. No exception is available except such as has been actually passed upon by the trial court. Burdoin v. Trenton, 116 Mo. 358. (7) Counsel, upon being admonished and told to keep within the record, desisted and there was no ground for exception. State v. Schorn, 12 Mo.App. 590; State v. Brandenburg, 118 Mo. 181; State to use v. Finn, 24 Mo.App. 344.

Robinson, J. Brace, C. J., Macfarlane, J., concur. Barclay, J., not sitting.

OPINION

Robinson, J.

This is a suit brought by plaintiff against the defendant, a corporation operating a line of street railroad in the city of St. Louis with electric power, to recover for personal injuries, alleged to have been received in the city of St. Louis while a train of cars running around a curve near Ninth street and Russell avenue in that city, by reason of the plaintiff having been thrown from the train as the train passed around said curve. The first count of plaintiff's petition is as follows:

"And plaintiff then and there sustained a severe concussion of the brain, and a severe laceration of the scalp, of which a large portion was cut and torn loose from his head, and also sustained a fracture of the bones at the base of the skull, and of the bones of the eardrum, a laceration of the right ear and bursting of the drumhead of the right ear, and a severe shock to his system, and loss of consciousness, which injuries caused bleeding of the ear, nose, eustachian tube and scalp, delirium, nervous prostration, total loss of hearing in the left ear and a permanent injury to the hearing and condition thereof, and injury to his brain, and by these injuries plaintiff sustained and suffered great mental and bodily pain and anguish and suffering from hence hitherto; and his mental and bodily health are permanently injured, and his ability to work and attend to business is greatly impaired, and he is subject to dizziness and loss of consciousness therefrom, and is unable to attend to business with the same degree of force, energy and persistency that he could before receiving said injuries."

The statement of the injuries in the second count is, with slight change of verbiage, substantially the same. The answer is a general denial, with allegations of contributory negligence.

The accident occurred late in the evening of October 6, 1891; it was during fair week and travel upon the road was unusually heavy; a slight rain was falling and the rails were damp at the time. Down Russell avenue, toward Ninth street, the track runs on a steep descending grade and at Ninth street it turns on a curve into said street and proceeds northwardly along Ninth street at right angles with the course pursued on Russell avenue; the curve is at the foot of a steep descent and connects the tracks upon these intersecting streets. The evidence of the plaintiff tended to show that the train in question came down Russell avenue at a rate of speed estimated to have been sixteen to thirty miles an hour, and that the train running into the curve at this speed, threw plaintiff off the rear platform of the motor car with great force and violence.

The evidence of the defendant tends to show that the car ran into the curve with unusual force, but the train was not moving at a rate of speed in excess of twelve miles an hour, that the cars and their equipments were all in first-class condition, but owing to the wet tracks, and the unusually heavy load, the wheels slid along the track when the brakes were applied, and that the fuse blew out so that the employees in charge of the train were unable to check it and bring it down to the usual and proper speed for entering the curve.

On the trial of the case and toward the close of plaintiff's testimony, the plaintiff called three witnesses, who were expert physicians, and attempted to prove by their testimony that, as a result of his injuries, plaintiff had become an incurable epileptic. The defendant objected to this testimony on the ground that nothing in the petition gave it any warning that epilepsy would be claimed as a result of plaintiff's injuries, or that proof upon that issue would be offered, and that such testimony was outside of the issues in the case. The court, however, overruled defendant's objection. At the close of plaintiff's testimony, defendant filed an affidavit of surprise, and asked the court to continue the case so as to allow the defendant time to prepare to meet this new issue with testimony. This application the court overruled.

The defendant then offered the testimony of several witnesses to prove the train could not have been moving at the rate of speed testified to by plaintiff's witnesses and still remain on the track in going around the curve. These witnesses were expert railroad men who had worked for years upon steam railroad. The defendant stated to the court that such testimony was offered as bearing upon the issue as to the rate of speed with which the train entered the curve at the time and place of the accident. The plaintiff objected to this testimony on the ground that as the question related to street railroads, it was not admissible and the court sustained the objection over defendant's exception.

At the time the expert evidence was offered by the plaintiff to support his contention that the injuries had made him an epileptic the trial continued until 9 o'clock at night, and commenced again early next morning and was concluded at half past 11 A. M., and then it was that the affidavit of surprise was filed by the defendant.

After the charge to the jury, one of the attorneys for the plaintiff in making his speech to the jury, used the following language: "Gentlemen of the jury, this man, Young, is a suborned witness. What is he doing here, if he was not paid to come here and testify?" Defendant's counsel objected to this language and asked the court to administer a rebuke to counsel for plaintiff for using the same, and the court responded by saying "counsel should keep within the record."

The jury returned a verdict for $ 6,750, from which, after a motion for new trial had been filed and overruled, the defendant appealed to this court.

Four assignments of error are made by the defendant as ground for reversal of the judgment of the lower court. First the error of the court in excluding testimony...