Glasgow v. Metropolitan St. Ry. Co.

• Decision Date: 22 November 1905
• Citation: 191 Mo. 347,89 S.W. 915
• Parties: GLASGOW v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

89 S.W. 915

191 Mo. 347

GLASGOW v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

November 22, 1905.

1. JURY — COMPETENCY OF JUROR — BUSINESS CONNECTION WITH PARTY.

In an action against a corporation for personal injuries, a juror was not subject to challenge because he was a clerk for another corporation, whose president was also the president of the defendant.

2. SAME — EXCUSE OF JUROR ON COURT'S OWN MOTION.

The trial court has discretion to excuse a juror, who, although not legally disqualified, is so situated that his sitting in the cause is reasonably liable to give either party an apprehension of unfairness.

3. SAME — TRIAL COURT'S DISCRETION.

It was no abuse of discretion for the trial court, in an action against a corporation for personal injuries, to excuse a juror who was a clerk in another corporation having the same president as defendant.

4. DAMAGES — PERSONAL INJURIES — EVIDENCE — HABITS OF INTOXICATION.

In an action for personal injuries, there was no error in excluding evidence as to habits of intoxication on the part of plaintiff, where no assurance was given by counsel for defendant that they had any evidence which would tend to connect habits of intoxication with the plaintiff's diseased condition, which she claimed arose from the injury.

5. SAME — DISEASE PRIOR TO ACCIDENT.

In an action for personal injuries, it was proper to exclude the testimony of a witness as to certain indications of disease in plaintiff prior to the accident, in the absence of any assurance from counsel for defendant that there was any evidence at hand tending to connect such conditions with the trouble with which plaintiff was suffering, and which she claimed was caused by the accident.

6. WITNESSES — COMPETENCY — PRIVILEGE PHYSICIAN AND PATIENT.

Under Rev. St. 1899, § 4659, providing that a physician or surgeon shall be incompetent to testify concerning any information which he may have acquired from a patient while attending him in a professional character, and which information was necessary to enable him to prescribe for the patient, in an action for personal injuries, it was proper to sustain an objection to a question put to a physician who had attended plaintiff as to what she told him concerning her condition and what disease he prescribed for.

7. EVIDENCE — EXPERTS — TESTIMONY INVADING PROVINCE OF JURY.

In an action for injuries to a passenger, owing to an alleged fall on alighting from a car defendant denied that there had been any fault, and claimed that plaintiff's diseased condition antedated the accident, if one, and a physician testified that in his opinion the plaintiff's condition was due to the fall. Held, that such testimony was error, as invading the province of the jury.

8. WITNESSES — CROSS-EXAMINATION — WRITINGS — DEPOSITION NOT FILED.

Where, in an action for personal injuries, defendant took the deposition of plaintiff after the commencement of suit, but for some reason it was never signed or certified by the notary, and not filed in the clerk's office, on trial of the action defendant had a right to cross-examine plaintiff on the statements made by her on the taking of the deposition.

9. DAMAGES — PERSONAL INJURIES — AGGRAVATION — DELAY IN TREATING INJURY.

One who suffers an injury is bound to exercise reasonable care in seeking medical or surgical aid, and, if neglect so to do aggravates the injury, the injured party is not entitled to recover for such aggravation.

10. SAME — QUESTION FOR JURY.

In an action for injuries, held, that under the evidence it was a question for the jury whether plaintiff had been guilty of contributory negligence in failing to exercise ordinary care in seeking medical or surgical aid, and thereby aggravating the injury.

11. SAME — INSTRUCTIONS — CONFLICTING INSTRUCTIONS.

In an action for injuries, an instruction directed the jury to award damages for a permanent injury, if they found it would be permanent, without considering whether the character of permanency was the result of the accident or of failure to obtain medical treatment, and in another they were directed not to award damages for an aggravated condition of plaintiff's malady, if it was caused by an unreasonable delay in obtaining medical aid. Held, that the instructions were improper, as inharmonious.

12. APPEAL — RECORD — ARGUMENT OF COUNSEL — ABSENCE FROM BILL OF EXCEPTIONS.

The only manner in which argument of counsel can be brought before the Supreme Court for review is by having the bill of exceptions state that such argument took place, and the fact that the bill of exceptions contains affidavits as to the argument is insufficient.

Appeal from Circuit Court, Jackson County; E. P. Gates, Judge.

Action by Ella N. Glasgow against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

John H. Lucas and Chas. A. Loomis, for appellant. Scarritt, Griffith & Jones, for respondent.

VALLIANT, J.

Plaintiff recovered a judgment against the defendant, a street railway company, for $5,000 damages for personal injuries received by her by falling when she was in the act of alighting from one of defendant's street cars. Her statement is that she was a passenger on the car which had stopped in obedience to a signal to allow her to alight, and that while she was on the step in the act of alighting the car was suddenly started forward with such force that she was thrown to the street and received severe injuries. The accident occurred September 25, 1900; this suit was brought March 4, 1902. The plaintiff's testimony tended to prove as follows: She was about 35 years old, married, but separated from her husband, was living with her parents, and was employed as a saleswoman in a department store at a salary of $4 a week. She was returning home from her day's work on the afternoon in question. When the car in which she had taken passage approached the street at which she designed to alight, at her request it was stopped, and she arose and passed out, in view of the conductor, to the step from the rear platform, and as she was in the act of stepping to the ground, but before she could finish the act, the conductor gave a signal for the car to start ahead, and it did so with so much sudden force that she was thrown to the street and badly hurt. Her mother and another woman friend who were present carried her into the house and put her to bed and bandaged her bruises. The next morning she went to her work and continued to do so for four or five days, but was feeling badly all the time, and at the end of that period, say about the 4th or 5th of October, she had to give up her work and go home and has not since been able to do any work. In September, 1901, about a year after the accident, she got a divorce from her then husband, and in October, 1901, married her present husband, who at that time was in the employ of the defendant company as a street car conductor, but on the last of February, 1902, he either quit or was discharged, and on March 4th thereafter this suit was begun. The testimony deals elaborately with the symptoms and nature of her affliction, but we deem it sufficient for the purpose of the legal questions presented in this appeal to say that her affliction was of a serious and distressing character. It was not until after her marriage in October, 1901, that she consulted a physician, and not until she filed this suit March 4, 1902, that she notified the defendant that she had met with the accident or suffered any injury. She testified that the reason she did not consult a physician earlier was that she was poor and had no means to pay for the services of a physician, and she asked no assistance from the company because she hoped all the time she would get well. The bulk of the defendant's testimony was to show that the plaintiff was afflicted with the disease she was complaining of before the date of the alleged accident. A large number of persons who claimed to be friends and associates of the plaintiff testified that they had heard her say at various times before the date of the alleged accident that she was so afflicted, and none of them had ever heard her say that she had met with such accident until after this suit was brought. She herself testified that she had never told any one besides her father and mother that she had been injured in a street car accident. These witnesses testified that after the date of the alleged accident she was going about and acting as she was accustomed to do before. When we come to discuss the various assignments of error we may quote the evidence a little more in detail as it bears on each assignment, but the above is sufficient for an understanding of the general nature of the case.

1. In the impaneling of the jury one of the jurors in the array of 18, during examination on his voir dire, volunteered to say that he was a clerk in another corporation whose president was also the president of the defendant corporation, and, although he said that fact would not influence his verdict as a juror if be should be chosen to sit in the case, yet in public opinion the two corporations were looked upon as allied, and that fact might render his motive liable to imputation, and for that reason he asked the court to excuse him from service. Thereupon counsel for the plaintiff challenged the juror for cause, the court overruled the challenge, but excused the juror. That is assigned as error. The court was right in overruling the challenge, because the facts stated did not disqualify the juror. But the authority of the court in such case is not limited to a decision of the strict legal question of the qualifications of a juror. It has a discretion to be exercised in the administration of justice in which it may excuse a juror, who although not legally disqualified, yet whose sitting is reasonably liable to fill either party with an apprehension of unfairness. A court in the...