Green v. Terminal Railroad Ass'n of St. Louis
| Decision Date | 26 February 1908 |
| Citation | 109 S.W. 715,211 Mo. 18 |
| Parties | JAMES F. GREEN v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.
Reversed and remanded (with directions).
J. E McKeighan and Wm. R. Gentry for appellant.
(1) The ruling of the court, in sustaining plaintiff's motion for a new trial, on the ground that the court had committed error in the admission of the testimony of physicians, inasmuch as the court concluded that their testimony was privileged, was erroneous. The communication testified to was not privileged. Brown v. Railroad, 45 Hun 439; People ex rel. v Abrahams, 96 A.D. 27; People v. Cole, 113 Mich. 83; Collins v. Mack, 31 Ark. 684; State v. Kennedy, 177 Mo. 129; James v. Kansas City, 85 Mo.App. 24; Linz v. Ins. Co., 8 Mo.App. 363; State v. Spaugh, 200 Mo. 571; Hamilton v. Crow, 175 Mo. 634; Holloway v. Kansas City, 184 Mo. 19; Murphy v. Comrs., 83 P. 577; Pearson v. People, 79 N.Y. 432; Railroad v. Yates, 67 Ala. 167; Rinz v. Dow, 113 Cal. 490; Stone v. Minter, 111 Ga. 45; Deuser v. Hamilton, 52 Mo.App. 394; Deuser v. Walker, 43 Mo.App. 625; Weinstein v. Reed, 25 Mo.App. 49; Campau v. North, 39 Mich. 606; Green v. Railroad, 171 N.Y. 201; People v. Koerner, 154 N.Y. 355; Benjamin v. Village of Upper Lake, 110 A.D. 428; Railroad v. Murray, 55 Kan. 336; 3 Jones on Ev., sec. 778; 4 Wigmore on Ev., p. 3351. (2) The motion for a new trial ought not to have been sustained, even if the communication to the physicians was improperly admitted in evidence. The plaintiff having had the case submitted to the jury, had already received more consideration at the hands of the court than he was entitled to, since his own testimony showed that he was guilty of contributory negligence which was the proximate cause of his injury. Zumault v. Railroads, 175 Mo. 288; Burde v. Railroad, 100 S.W. 509; Harper v. Railroad, 187 Mo. 575. (3) The motion for a new trial ought not to have been sustained, even if the court should hold that the plaintiff was entitled to have the case submitted to the jury. It is apparent, even from the cold print in the record of this case, that the verdict was for the right party, and that, on the plaintiff's own testimony, no jury would be justified in believing his version of the case.
S. P. Bond for respondent.
(1) The court was right in granting plaintiff a new trial, as it was error to allow the assistant physicians and surgeons to testify when called by the defendant concerning any information which they may have acquired from the plaintiff while attending him in a professional character on the day of his injuries over and against plaintiff's objection made and saved at the trial, because anything they learned was a privileged communication between plaintiff and his physicians. Gartside v. Ins. Co., 76 Mo. 452; Groll v. Tower, 85 Mo. 255; Carrington v. St. Louis, 89 Mo. 216; Thompson v. Ish, 99 Mo. 174; Morton v. Moberly, 18 Mo.App. 459; Streeter v. Breckenridge, 23 Mo.App. 252; Corbett v. Railroad, 26 Mo.App. 626; King v. Kansas City, 27 Mo.App. 247; Weitz v. Railroad, 33 Mo.App. 44; Evans v. Trenton, 112 Mo. 404; Mellor v. Railroad, 105 Mo. 460; Howarth v. Railroad, 94 Mo.App. 225; State v. Kennedy, 177 Mo. 127; James v. Kansas City, 85 Mo.App. 23; Glasgow v. Railroad, 191 Mo. 358; Frief v. Railroad, 97 Cal. 47; Raymond v. Railroad, 65 Iowa 154; Halloway v. Kansas City, 184 Mo. 19. (2) The court did not err in submitting the case to the jury under the testimony and law of the case, because where there is a reason to apprehend that the track may not be clear, the persons in charge of a railroad train can not act on the presumption that the track is clear without the company being responsible for the consequences, and this is true notwithstanding the person is a trespasser and the company's right to have a clear track. However, plaintiff was not a trespasser in defendant's yards. Chamberlain v. Railroad, 133 Mo. 603; Tearson v. Railroad, 79 S.W. 400; Morgan v. Railroad, 159 Mo. 282; Klockenbrink v. Railroad, 172 Mo. 688; Dunkman v. Railroad, 95 Mo. 244; Merz v. Railroad, 88 Mo. 673; Kelley v. Railroad, 104 Mo. 389; Bunyan v. Railroad, 127 Mo. 12; Czezewzka v. Railroad, 121 Mo. 201. (a) The court erred in giving the defendant's first instruction marked "A," because where the answer alleges a specific act of negligence on the part of the plaintiff as the ground of defendant's defense, there can be no defense for another act not pleaded in its answer. Chitty v. Railroad, 148 Mo. 73; Crawford v. Aultman & Co., 139 Mo. 271. (b) And the court further erred in giving defendant's second instruction marked "B," because it is in conflict with plaintiff's second and third instructions, which correctly declare the law. (3) It was irregular and unlawful for the juror to visit the scene of the accident. Daud v. Guthrie, 13 Ill.App. 659; Stampopski v. Steffins, 79 Ill. 303; State v. Berlin, 24 La. Ann. 46; State v. Sanders, 68 Mo. 206; Eastwood v. People, 3 Park. Crim. Rep. 54; State v. Lopez, 15 Nev. 407.
Plaintiff sued for the loss of his left arm, grounding his right of action on the alleged negligence of defendant, and putting his damages at $ 20,000. The cause was tried with the aid of a jury. A verdict going for defendant, plaintiff filed his motion for a new trial, and from an order granting one defendant appeals.
The following ordinance was in force in the city of St. Louis at the times in hand:
The cause of action is predicated of violations of certain provisions of the foregoing ordinance, viz., (1) in regard to sounding a bell, (2) in regard to stationing a man on a backing train on top of the car at the end farthest from the engine and (3) in regard to the train being well-manned with experienced brakemen.
The petition alleges that on the 29th day of July 1904, while plaintiff was "along, upon and near" defendant's railroad tracks in its yards between Tenth and Twelfth streets in the city of St. Louis, at a point where defendant's tracks are frequented and used by many pedestrians at all times of the day, he was run over and hurt by a freight train "being shunted or backed and propelled by a locomotive engine belonging to defendant." That an amputation of his arm resulted from the injury so received. That such injury was directly caused by the carelessness and negligence of defendant's agents and servants in charge of said locomotive and train of cars to keep a proper lookout for persons upon or near said tracks when by so doing they could have prevented said freight train from running over plaintiff. The ordinance aforesaid is pleaded and sufficient allegations are made relating to a negligent omission to obey it, in the particulars aforesaid, and it is averred that each and all of said omissions directly contributed to plaintiff's injury.
The cause was tried on an amended answer, coupling a general denial to an affirmative plea of contributory negligence, to the effect that plaintiff went into defendant's yards and negligently placed himself so near one of the defendant's tracks that there was not sufficient room for a train to pass over such track without striking his person. That plaintiff negligently continued to occupy such position and failed to exercise ordinary care to look and listen for the approach of trains and engines or to get out of the way of them.
The reply was conventional.
The evidence tended to show as follows:
The scene of the accident was defendant's switching yards between Tenth and Eleventh streets in the city of St. Louis. There was a cluster of tracks there used by defendant in shifting and switching cars to be cut out of and made into trains, and to unload and load them. This use was constant the yards were a place of great activity and danger and it might be expected that cars would be moved every few minutes. Only one of said tracks concerns us, and that is a single track running east and west between two raised platforms -- both used for freight purposes. These platforms were at such a height above the ground that the tops of them were even with the floor of freight cars and were open underneath. The evidence varies somewhat on their height. Some of the witnesses for plaintiff, estimating, put it at from two and one-half to three and one-half feet. The actual measurement by defendant's engineer showed the height to be from four feet to four feet and four inches. The north platform ran along the rear of a freight house, was used in connection with it and (as we understand it) this freight house fronted on Poplar street. The time of the accident was between six and seven o'clock of the morning of July 29, 1904. It was hours after broad daylight -- a bright, dry morning. Looking east from the east end of either...
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