Jerome v. United Railways Company of St. Louis
| Decision Date | 24 January 1911 |
| Citation | 134 S.W. 107,155 Mo.App. 202 |
| Parties | LIZZIE E. JEROME, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. George H. Williams Judge.
Judgment affirmed.
Geo. T Priest and R. E. Blodgett for appellant; Boyle & Priest of counsel.
(1) Plaintiff's instruction No. 4, which directed the jury to return a verdict for the plaintiff if they believe the car was "started forward with a sudden and an unusual jerk" while plaintiff was alighting therefrom is erroneous, because it does not require the jury to find further that the car was not stopped a sufficient length of time to permit plaintiff to alight. Millar v. Transit Co., 215 Mo. 607, 619; Cramer v. Traction Co., 112 Mo.App. 350, 363; Clotworthy v. Railroad, 80 Mo 220; Jackson v. Railroad, 118 Mo. 199, 224. (2) The court erred in permitting plaintiff's expert witnesses to testify as to their conclusions and thereby invade the province of the jury. (a) The court erred in permitting witness, Dr. Simon, and witness Dr. Konzelmann, to testify plaintiff will suffer pain in the future. Glasgow v. Railroad, 191 Mo. 347, 360; Beahr v. Casualty and Surety Co., 133 Mo.App. 542; Thomas v. Metropolitan Street Ry. Co., 125 Mo.App. 131, 138; Lutz v. Metropolitan Street Ry. Co., 123 Mo.App. 499, 502; Feed and Coal Co. v. Railroad, 129 Mo.App. 498, 504. (b) The court erred in permitting Dr. Konzelmann to testify that plaintiff's swelling was caused by trauma, that is to say, violence. Same cases as cited under (a).
George Safford for respondent.
(1) The high degree of care which the law puts upon the carrier of passengers is not fulfilled in the case of a street railway carrier, unless its servants, before putting a car in motion, see and know that all passengers in the act of alighting have succeeded in doing so in safety, and that no passenger is in such a situation as to be put in peril by the starting of the car. 3 Thompson on Neg. (2 Ed.), sec. 3520, p. 894; West Chicago, etc., Co. v. Manning, 170 Ill. 417; Railroad v. Wildman, 119 Ala. 547; Anderson v. Citizen's St. R. Co., 12 Ind.App. 194; Leavenworth Elec. Ry. v. Cusick, 60 Kan. 590; Hurley v. Railroad, 120 Mo.App. 265; Murphy v. Railroad, 125 Mo.App. 275; Bell v. Railroad, 125 Mo.App. 665. (2) The court did not err in permitting plaintiff's expert witnesses to testify to their alleged conclusions. (a) Because the witnesses testified to opinions, not conclusions. (b) Because, whether or not certain injuries, seen by the expert witness, will cause pain in the future, is a proper subject for expert testimony. Rossier v. Railroad, 125 Mo.App. 163; Detrich v. Railroad, 125 Mo.App. 611; Redmon v. Railroad, 185 Mo. 14; Wood v. Railroad, 181 Mo. 448; McCaffrey v. Railroad, 192 Mo. 160.
This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.
It appears plaintiff, a lady about sixty years of age, was a passenger on defendant's street car operated by it on Olive street in the city of St. Louis. She was seated in the forward portion of the car. Upon approaching Theresa avenue, which was her destination, she gave the signal for the car to stop to permit her to alight. In pursuance of the signal, the car came to a stop at the usual place for discharging and receiving passengers and because of its crowded condition, plaintiff passed out of the front door to alight from the platform there provided for such purpose. The evidence tends to prove that she proceeded with reasonable diligence and exercised ordinary care for her own safety, but while she was in the very act of alighting, the power was turned on and the car started forward. It is said the conductor, who was on the rear platform, sounded the bell for the motorman to move forward, which signal was complied with, and the car started in motion while plaintiff was about to alight. Because of this fact, she was precipitated upon the ground with great force and received numerous, painful and permanent injuries.
Among other things, the court instructed the jury for plaintiff that if she was a passenger on the car and it stopped at Theresa avenue for the purpose of permitting her to alight therefrom and that she proceeded to alight from the car with reasonable expedition and the servants and agents of defendant, whose duty it was to control the motion of the car, while she was in the act of so doing and before she had fully alighted therefrom, without giving her warning to that effect, caused the car to start forward with a sudden jerk and thereby directly and proximately caused her injury, then the finding should be for plaintiff, provided she was exercising ordinary care at the time. It is argued the instruction is erroneous in that it omits to require the jury to find further that the car was not stopped a reasonable length of time to permit plaintiff to alight. The argument is without merit on the facts of the case, for though it is true the duty rests upon defendant to stop its car a reasonable length of time for passengers to alight and the passengers are presumed to act with due diligence in that regard, the doctrine is without influence here for it appears the car stopped upon the plaintiff's signal for the purpose of permitting her to alight. In such circumstances, the high degree of care which the law devolves upon the carrier of passengers is not fulfilled unless its servants, before staring the car, see and know that the passenger in the act of alighting has succeeded in doing so in safety and that he or she is not in such a situation as to be imperiled by the sudden starting of the car. [Thompson's Com. on Neg., sec. 3520; Nelson v. Met. St. R. Co., 113 Mo.App. 702, 88 S.W. 1119; Bell v. Central, etc., R. Co., 125 Mo.App. 660, 103 S.W. 144; Murphy v. Met. St. R. Co., 125 Mo.App. 269, 102 S.W. 64; Hurley v. Met. St. R. Co., 120 Mo.App. 262, 96 S.W. 714.] Both the conductor and motorman must have known in this case that plaintiff was then in the very act of alighting from the car, for it is conclusively shown that the car stopped to permit her to do so. And it appears she was under the very eye of the motorman, who was stationed on the front platform, when the car was suddenly started forward by him. In such circumstances, those operating the car should not only hold it stationary a reasonable length of time for the passenger to alight but should exercise high care as well to the end of ascertaining the fact of the passenger's safety before putting the car in motion, to her peril. [See Bell v. Central, etc., R. Co., 125 Mo.App. 660, 103 S.W. 144 and authorities supra.]
Two physicians, Dr. Simon and Dr. Konzelmann, who had made personal examinations with respect to plaintiff's injuries, qualified as expert witnesses at the trial. After describing plaintiff's condition, etc., each of these professional gentlemen was permitted to express an expert opinion, based solely upon the objective symptoms which he discovered from an examination of plaintiff's injuries, to the effect that she would suffer pain therefrom in the future. From examination made and the objective symptoms discovered, these witnesses said they were able to state whether or not she would suffer pain therefrom in the future. After so stating, the court permitted them to express the opinion, over defendant's objection and exception, that plaintiff would suffer future pain from the injuries said to have been received through defendant's negligence. It is earnestly argued the court erred in so doing, for the reason the expert opinion so given was but the conclusion of the witnesses and invaded the province of the jury. No one can doubt that a physician duly qualified as an expert may, as a general rule, testify to the probable results of an injury. [Rogers on Expert Testimony (2 Ed.), sec. 50, p. 122; Louisville, etc., Ry. Co. v. Lucas, 119 Ind. 583, 584, 21 N.E. 968; McClain v. Brooklyn, etc., Ry. Co., 116 N.Y. 459, 22 N.E. 1062; Lincoln v. Saratoga, etc., R. Co., 23 Wend. 425; Abbott v. Dwinnell, 74 Wis. 514, 43 N.W. 496; Rosier v. Met. St. R. Co., 125 Mo.App. 159, 164, 101 S.W. 1111.] We entertain no doubt whatever that it was competent for the physicians to express the opinion that plaintiff would suffer pain in the future from her injuries. This in no respect invaded the province of the jury for it was a matter about which laymen are not competent to exercise an intelligent judgment, in the absence of enlightenment from those who are peculiarly learned with respect to injuries and the probable results which they will entail.
It appears, among other injuries, plaintiff received a severe sprain of the ankle and her foot was much swollen thereafter. Dr. Konzelmann, though he qualified as an expert as well, was her attending physician, having been called immediately after plaintiff was injured. This witness gave testimony with respect to the...
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