Jackson v. Kansas City Rys. Co.

• Decision Date: 27 June 1921
• Citation: 232 S.W. 752
• Parties: JACKSON v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

232 S.W. 752

JACKSON v. KANSAS CITY RYS. CO.

Kansas City Court of Appeals. Missouri.

June 27, 1921.

Rehearing Denied July 7, 1921.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by Rachel E. Jackson against the Kansas City Railways Company. From judgment for plaintiff, defendant appeals. Affirmed.

R. J. Higgins, of Kansas City, Kan., L. E. Ball, of Kansas City, Mo., and L. T. Dryden, of Independence, for appellant.

Hamilton & McClanahan, J. W. Patterson, and W. B. Leslie, all of Kansas City, Mo., for respondent.

BLAND, J.

This is a suit for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $2,000, and defendant has appealed.

The facts show that on September 18, 1918, plaintiff was riding in the seat with her husband, who was driving a one-horse spring wagon north on Indianan avenue between Thirty-Second and Thirty-Third streets in Kansas City, Mo., when the wagon was struck in the rear by a north-bound street car being operated by the defendant. The impact caused plaintiff to be thrown to the street, resulting in her injury.

It is insisted by the defendant that the court erred in permitting plaintiff, after the jury had been sworn and after the, opening statements of counsel, to amend her petition by interlineation by inserting the words "that it will be necessary to operate on plaintiff and remove the uterus to better her physical condition." Before the amendment was allowed the petition alleged that plaintiff was "seriously and permanently injured in the pelvic region, resulting in an increase in the size of the uterus and the displacement of the same." At the time the amendment was permitted the court called counsel for both sides to the bench and said that defendant should have an opportunity to have plaintiff examined, and plaintiff's attorney said, "Yes; you may have her examined at any time." We think there is no merit in defendant's contention. Defendant filed no affidavit of surprise. Corrigan v. Brady, 38 Mo. App. 849, 659.

Defendant insists that it filed an affidavit of surprise in the form of a verified application for continuance, but the application for continuance shown in the record relates to the absence of certain witnesses whose testimony defendant alleged to have been material. Nothing is mentioned in regard to the matter of the amendment of the petition by interlineation. Defendant says that the application for continuance appearing in the record was one filed in the cause at a former trial, and that it appears in the record of this trial by mistake. However, the record bespeaks absolute verity, and may not be contradicted by defendant in its brief or in the oral argument, as was attempted in this case. Taking the record as it stands, there is an absence of any affidavit of surprise. It is true it states that defendant excepted to the action of the court in refusing to grant a continuance on the ground of surprise at the time of the amendment by interlineation, but there is no record showing that such affidavit was filed, or its contents. We are entitled to see the affidavit and judge for ourselves of its sufficiency.

It is next insisted that the court erred in overruling defendant's objection to hypothetical questions relating to the distance within which the car could have been stopped; that such questions did not contain any of the necessary elements or facts upon which an expert could base an opinion. The objection to these hypothetical questions was that the questions omitted facts necessary to be stated. Defendant did not supply the facts that it deemed essential in these questions, and for that reason the objection was properly overruled. Pennington v. Kansas City Rys. Co., 201 Mo. App. 483, 213 S. W. 137, 140, and cases therein cited.

It is insisted that the court erred in giving its instruction C-A. This instruction...