Holden v. Missouri R. Co.

• Decision Date: 13 December 1904
• Citation: 84 S.W. 133,108 Mo. App. 665
• Court: Missouri Court of Appeals
• Parties: HOLDEN v. MISSOURI R. CO.<SMALL><SUP>*</SUP></SMALL>

84 S.W. 133

108 Mo. App. 665

HOLDEN v. MISSOURI R. CO.^*

St. Louis Court of Appeals. Missouri.

December 13, 1904.

INJURIES — ACTION — EVIDENCE — EXPERT WITNESS — HYPOTHETICAL QUESTION — SEVERAL GROUNDS OF NEGLIGENCE — SUBMISSION TO JURY — STREET RAILROADS — OPERATION — NEGLIGENCE.

1. In an action for injuries, a question put to an expert medical witness for plaintiff, as to whether, if plaintiff had received certain injuries shown by the evidence, the witness believed that they caused the result found by the witness on his examination of plaintiff, was not objectionable as calling for two opinions — one founded on the witness' personal examination, and the other on the hypothesis.

2. On examination of an expert concerning a personal injury, a question may be either as to the cause of plaintiff's condition, or, conversely, what would be the effect of such an injury as that received.

3. In an action for injuries, an instruction that the jury might award the damages that plaintiff "will be likely to suffer in the future" was not erroneous by the use of the word "likely," as authorizing the jury to estimate the damages, irrespective of such as they might believe

from the evidence would reasonably result from the injuries in the future.

4. The violation of a city ordinance governing the speed of street cars, and the care required in their operation, is negligence per se.

5. In an action against a street railroad company for damages to plaintiff's wagon in a collision with a car, the petition having alleged negligence in operating the car at a careless and negligent rate of speed, it devolved on the plaintiff to show that the speed was not only excessive, but that it was negligent.

6. Unless the facts are such that reasonable minds could come to but one conclusion, they should be submitted to the jury.

7. Where, in an action for personal injuries, several different acts of negligence are relied on, plaintiff is entitled to recover if the jurors agree that there was negligence, though they do not agree as to the grounds thereof.

8. Where, in an action for injuries, plaintiff's evidence showed that he had been reduced from a strong man to a mere physical wreck, and had lost the hearing of one ear, and was partially deaf in the other, and that his eyesight had been impaired, and his sense of touch, in a degree, lost, and that his bodily pain and mental anguish had continued, and most likely would continue for an indefinite time, a verdict for $3,000 was not excessive.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by William Holden against the Missouri Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

In December, 1897, a wagon on which plaintiff was being driven down Pine street, in the city of St. Louis, was struck at the intersection of Pine and Thirteenth streets by one of defendant's street cars traveling on Thirteenth street, and plaintiff was thrown from the seat to a granite pavement eight feet below, alighting on his head. A deep gash, six to eight inches in length, on the right side of his head, and other scalp wounds, were the resulting injuries. The suit is to recover the damages caused by the accident.

Three distinct acts of negligence are alleged in the petition: First, the violation of the ordinance limiting the speed of street cars to 10 miles per hour in the district where the accident occurred; second, violation of what is known as the "Vigilant Watch Ordinance"; third, negligence in operating the car at a careless and negligent rate of speed. In respect to the damages the petition alleges "that prior to said injury plaintiff was a strong and healthy man, employed and earning the sum of $14 per week; that on account of such injury he was confined to his bed for a number of weeks, and was unable to resume his employment for a period of seven weeks, and was obliged to, and did, expend and become liable for a large sum of money for physicians' and surgeons' services, medicines, and supplies necessary to promote his recovery, has suffered and will continue to suffer great bodily and mental pain, is disfigured for life, practically deaf in one ear, and his capacity for following his vocation of machinist is lessened — all to plaintiff's damage in the sum of $5,000. Wherefore plaintiff prays judgment against the defendant for the sum of $5,000 and costs." The answer was a general denial and a plea of contributory negligence.

In respect to the accident itself, the evidence offered by plaintiff tended to prove the three several acts of negligence alleged in the petition, and that offered by the defendant tended to show that the operators of the car were not guilty of any negligence whatever. In respect to the extent and duration of plaintiff's injuries, the evidence offered in his behalf tended to show that at the time of the accident he was a powerful, robust, healthy man, weighing 200 pounds, and for a number of years previous had been constantly employed at work as a machinist. At the trial he was greatly reduced in weight, had lost much of his physical strength, his sense of feeling was greatly impaired, his eyesight had greatly failed him, he was entirely deaf in his right ear, over which the principal injury was inflicted, and the hearing of his left ear was affected. The evidence tended to show that these injuries resulted from his fall from the wagon to the street. The evidence offered by defendant tended to show that the impairment of plaintiff's hearing resulted from catarrh. Plaintiff testified that the injury caused his deafness. On cross-examination, Dr. Bradley, introduced by plaintiff as an expert, was asked the following question: "Q. Supposing this to be the fact, doctor: That some time prior to Mr. Holden calling on you he was thrown from a wagon some six or eight feet above the surface of the ground; he fell on his head, on the right side, and fell a distance from the seat down to the ground; the surface of the ground was covered with granite blocks; a cut resulted, extending from about this portion of his head (indicating) back six inches (right side), from which he was confined to his house about seven weeks, and just after that a deafness resulted in his right ear — state whether or not, under those circumstances, you believe that fall caused such injury as the result as you found in your examination?" Defendant objected to the question for the reason "it calls for two opinions, one of them founded on his personal examination, the other founded on the hypothesis; and counsel insists that they be separated, that his answer to the hypothesis be confined to that, and, when testifying from the examination, that he be confined to that." The objection was overruled, to which ruling defendant duly objected and excepted, and the witness answered the question as follows: "Such a cause might result in a deafness. It might be simply temporary, and it might be permanent; and, as to the discharge, why, it would have to be the impairment; and, as to that, why, I couldn't say positively about whether this resulted — this purulent discharge. If there was an injury for that, there was a cause — a mastoid or inflamed mastoid cells."

The court gave the following instruction on the measure of damages: "If you find for the plaintiff, your verdict will be for such amount, not to exceed five thousand dollars, as you believe from the evidence will compensate him for such loss of earnings or decreased earning capacity, if any, as you may find to have resulted from the injury, or as will directly result in the future therefrom, and for such pain of body or mind, or physical inconvenience, if any, as you may find plaintiff to have suffered, or that he will be likely to suffer in future, by reason of such injury." The court instructed the jury that nine of its number might make a verdict. In this connection the defendant asked, but the court refused, the following instruction: "By another instruction the court has told you under what circumstances nine or more of your number may return a verdict, and as to how the same shall be signed. In connection with said instruction given you, you are further instructed that, before you are authorized to return a verdict for plaintiff in this action, it is necessary that nine or more of you shall find from the evidence and agree that defendant was guilty of at least one of the specific grounds of negligence submitted to you for your determination, and that it is not sufficient that nine of your number agree to find for plaintiff, when the nine so agreeing differ as to the specific act or acts of negligence of which they find defendant guilty." A verdict (concurred in by all the jury) finding for plaintiff, and assessing his damages at $3,000, was returned. After unavailing motions for new trial and in arrest, defendant appealed to this court.

Boyle, Priest & Lehman, for appellant. Jones & Herod, for respondent.

BLAND, P. J. (after stating the facts).

1. The question propounded to Dr. Bradley, to which defendant objected, does not call for two opinions, as contended by defendant, but assumes the existence of the fact to which the witness had previously testified, to wit, that he had made a professional examination of plaintiff's ears, and found them in the condition described in his evidence. Assuming the existence of this condition, the question then proceeded to hypothecate a state of facts in evidence in respect to the injury, and to inquire whether or not this state of facts would, in the opinion of the witness, produce the diseased condition of plaintiff's ears that he had found. There was before the witness a given condition or effect, ascertained by his examination. The injury was described by the question, and he was asked if the injury described would likely produce the effect he found. On examination of an expert concerning a personal injury, a question may be either as to the cause of the...