Jackman v. St. Louis & H. Ry. Co.

• Decision Date: 23 May 1921
• Docket Number: No. 22106,22106
• Citation: 231 S.W. 978
• Court: Missouri Supreme Court
• Parties: JACKMAN v. ST. LOUIS & H. RY. CO.

231 S.W. 978

JACKMAN v. ST. LOUIS & H. RY. CO.

No. 22106

Supreme Court of Missouri, Division No. 2.

May 23, 1921.

Rehearing Denied June 23, 1921.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by Mary Jackman against the St. Louis & Hannibal Railway Company. Judgment for plaintiff, and defendant appeals.

See, also, 206 S. W. 244, and 187 S. W. 786.

This action was brought by respondent in the circuit court of Lincoln county, Mo., on February 21, 1913. In the amended petition, upon which the cause was tried, plaintiff sought to recover $15,000 for personal injuries received by her while a passenger on defendant's train in above county on August 29, 1912. General negligence is charged in said petition, and the answer is a general denial.

The case was originally tried in Lincoln county, Mo., in 1913. Plaintiff obtained a verdict and judgment for $7,500, and defendant appealed the cause to the St. Louis Court of Appeals, where it was reversed and remanded on July 5, 1916. It will be found reported in 187 S. W. at pages 786 and following. On account of the admission of the testimony of Dr. Pendleton at above trial, and the remarks of Judge Woolfolk concerning counsel, the cause was remanded to the Lincoln county circuit court for a new trial. Thereupon a change of venue was granted defendant, and the cause was sent to St. Louis county, where it was tried before Judge Wurdeman and a jury, in which plaintiff recovered a verdict for $15,000. The trial court reduced said amount to $8,000, and plaintiff then remitted $500 additional, so as to reduce the amount of recovery to $7,500. Defendant again appealed to the St. Louis Court of Appeals, where the case was reversed and remanded on November 6, 1918, and will be found reported in 206 S. W. at pages 244 and following a was reversed and remanded the second time, on account of improper remarks made by Mr. Creech, counsel for plaintiff, during the argument of the case before the jury. The case was again tried before Judge Wurdeman and a jury at the September term, 1919, of the St. Louis county circuit court. A verdict was returned In favor of plaintiff for $12,000, and judgment entered thereon in due form.

The evidence discloses that plaintiff, who was 63 years of age at the last trial, having attended the county fair at Troy, in Lincoln county, Mo., was returning home to Silex, in said county, on the evening of August 29, 1912, as a passenger for hire, on defendant's train. She occupied a seat with her daughter on the left side of the aisle near the rear of the car. She was next to the window, and her daughter next to the aisle. All the coaches were crowded, the seats full, the aisles packed, with people sitting on the arms of the seats, etc. The train was behind time, and traveling at a high rate of speed. When nearing Davis, the crowded car in which the plaintiff was riding suddenly commenced jerking, bumping, lurching, tilting, etc. It and the other coaches left the rails and were running along on the ties. The front wheels of plaintiff's coach finally got off on the ground over the end of the ties. Passengers were thrown to and fro, against the windows, seats, and sides of the cars. There was great excitement and confusion; frightened women were screaming, etc. When near Davis, the train stopped with a sudden jerk, throwing passengers forward. Plaintiff's daughter was thrown forward, and on regaining her seat found that plaintiff had fallen down between the seats with her knees cramped. She lifted her mother back into the seat, and assisted her down the Steps in leaving the car. An emergency train was made up, and plaintiff was carried back to Silex in the baggage car.

The defendant stood upon its general denial, but made no attempt to show what caused said coaches to leave the track.

Plaintiff claims to have been seriously and permanently injured under the circumstances aforesaid.

Appellant in its brief insists that the verdict of the jury is grossly excessive; that the jurors were actuated by passion, prejudice, or sympathy in returning so large a verdict, and we are asked to reverse and remand the cause by reason thereof.

Other errors are complained of, relating to the exclusion of the testimony of certain witnesses given at the former trial, and in regard to the alleged improper and prejudicial examination of certain physicians called as plaintiff's witnesses. In order to avoid repetition, we will consider the foregoing matters in the opinion.

Defendant, in due time, filed its motion for a new trial, which was overruled, and the cause duly appealed to this court.

Sutton & Huston, of Troy, Fauntleroy, Cullen & Hay, of St. Louis, and Hostetter & Haley, of Bowling Green, for appellant.

Creech, Penn & Palmer, of Troy, A. E. L. Gardiner, of Clayton, Frank Howell, of Troy, and Henry S. Caulfield, of St. Louis, for respondent.

BAILEY, C. (after stating the facts as above).

I. Under appellant's assignments of error, we find the following:

"(1) The verdict is so grossly excessive and is indicative of such passion and prejudice on the part of the jury that the vice cannot be cured by remittitur ordered in this court; but the cure can only be properly effected by a reversal of the judgment."

The printed abstract of record in this cause covers 400 pages of printed matter. More than 350 pages of said abstract, relate solely to the questions of injury and damages. Said record embraces the testimony of more than 40 witnesses, and at least 35 of these testified in respect to the extent of plaintiff's injuries, etc. We have carefully read all the evidence, as well as the briefs of counsel upon each side. It is not the province of this court to pass upon the weight of the evidence, and we shall not attempt to do so. It is clear from the undisputed facts that plaintiff on August 29, 1912, was a passenger upon defendant's train, and that the latter, or a portion of same, left the rails and threw the plaintiff between the seats of the car in which she was riding.

Plaintiff introduced substantial evidence" tending to show that she received an injury at the time of the accident, although no physician was called to see her until about the 21st of October, 1912. She was about 56 years of age at the date of the accident, and had been in good health prior to that date. Both plaintiff and her daughter, as well as other witnesses, testified that after the accident her right knee was swollen and inflamed; that liniments and home remedies were used to reduce the swelling, and that from December 3, 1912, until the last trial in September, 1919, during a period of nearly 7 years, plaintiff's right knee had been swollen and inflamed; that during most of said time, her limb was in plaster or her knee covered with splints; that during said period she had been a constant sufferer, and at the trial was in practically no better condition; that she had been suffering during said period with inflammation of the tissues in and around her right knee joint; that said condition was termed by the medical profession "arthritis"; that it could have been caused by an injury and was not the result of rheumatism.

The defendant sought by a large number of witnesses to discredit plaintiff and her injuries, by introducing in evidence her statements, her appearance and apparent condition from time to time, as well as the testimony of certain doctors, including the family physician, tending to show that her injuries were mostly imaginary, or greatly exaggerated. Defendant likewise contends that if plaintiff was suffering as she alleges, it was from rheumatism, and not from the effect of any injury sustained in the accident.

On the other hand, plaintiff introduced a number of lay witnesses, whose testimony tends to support her contention as to her injuries, and in addition thereto, produced before the jury the evidence of Drs. Charles H. Riggs, Eugene Barrymore, G. C. Eggers, Harvey S. McKay, William Thomas Coughlin, and Fred Bailey.

These six reputable physicians examined plaintiff between August, 1912, and September, 1919, at different times. Some of them had her under treatment for months at a than The testimony of Dr. Riggs tends to show that he had...