Johnson v. Kansas City Rys. Co.

• Citation: 233 S.W. 942
• Decision Date: 13 June 1921
• Docket Number: No. 14023.,14023.
• Parties: JOHNSON v. KANSAS CITY RYS. CO.
• Court: Court of Appeal of Missouri (US)

233 S.W. 942

JOHNSON v. KANSAS CITY RYS. CO.

No. 14023.

Kansas City Court of Appeals. Missouri.

June 13, 1921.

Rehearing Denied July 7, 1921. Certiorari to Supreme Court Denied.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Edith Johnson against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. J. Higgins, of Kansas City, Kan., and. Chas. N. Sadler, John E. Connors, E. E. Ball, and Gabriel & Conkling, all of Kansas City, Mo., for appellant.

Joseph G. Littick and Milton J. Oldham, both of Kansas City, Mo., for respondent.

TRIMBLE, P. J.

Plaintiff's action is for damages on account of personal injuries received while a passenger on one of defendant's cars through its collision with another car headed the same way and on the same track. She obtained a verdict of $8,250, of which amount she voluntarily remitted $750, reducing it to $7,500, for which judgment was rendered, and defendant has appealed.

The evidence in plaintiff's behalf tended to show that on the morning of"the 2d of October, 1918, plaintiff was a passenger on one of defendant's cars. It was crowded, and she was standing in the front vestibule immediately behind the motorman, who was fenced off from the vestibule by a little partition the top portion of Which was glass. Her evidence is that the car was going north, and plaintiff could see ahead of the car. When the car plaintiff was on reached a point about halfway between Thirtieth and Twenty-Ninth streets she saw another car on the same track at Twenty-Ninth street which was standing still to take on or let off passengers. It was a foggy morning, the fog being thick in low places. From the point where plaintiff noticed the standing car the one she was on ran rapidly to and collided with the standing car. Plaintiff was thrown against the partition in front of her and then to the floor unconscious, and was unable to say what occurred after the collision. She was picked up and carried in an unconscious state to a nearby drug store, and was afterwards taken, still in an unconscious condition, to the hospital. During the time at least that she was being taken from the car and cared for in the store she was moaning and spitting blood. She was unconscious for several days in the hospital, and remained there for fourteen weeks, and then was taken home, where she was in bed and about the house for seven weeks, during all of which time she was under the care of a physician. She left the hospital on January 7, 1919, but on December 11 of that year she returned and stayed for a period of six weeks. As to this second trip to the hospital, however, one of her witnesses said she went there because of an attack of pneumonia, but, on objection of defendant, this was stricken out because the witness was not competent or qualified to speak on that subject. Another of her witnesses said she went back to the hospital the second time on account of a "bad cold." Afterwards her doctor, on cross-examination, said she was stricken with bronchial pneumonia a day or two before her second admission to the hospital.

Later on plaintiff sought to prove by the doctor that the pneumonia could be superinduced by her condition resulting from the injury, to which defendant objected, and thereupon plaintiff's physician testified that, as plaintiff had a chest injury, she would be more liable to infections. Defendant's objections to the questions, however, were that they called for the witness' conclusion, that the evidence was incompetent, irrelevant, and immaterial, and did not tend to prove or disprove any issue in the case. No objection was made that the evidence was not within the pleadings, nor was the trial court's attention called to that feature or ground of objection. It is well settled that an objection to the admissibility of evidence must be specific and contain the proper ground of its exclusion, else the trial court will not be convicted of error for overruling it. Griveaud v. St. Louis, etc., R. Co., 33 Mo. App. 458; O'Neill v. Kansas City, 178 Mo. 91, 77 S. W. 64; Carthage, etc., Co. v. Central Methodist Church, 156 Mo. App. 671, 137 S. W. 1028.

The evidence in plaintiff's behalf tends to show that her face, nose, and lips were cut and mashed; four of her teeth were loosened; there was a hemorrhage into the antrum causing an abscess on her cheek and much pain; she had four ribs broken; her wrist, one ankle, and her spine were injured, with indications that the latter suffered a concussion producing a derangement of the cells of the spinal cord and a resulting neurosis; also her pelvic organs were injured, her womb retroverted, her menstrual flow first interrupted and then coming on and continuing without ceasing; and many other conditions, including insomnia, nervousness, and the necessity of submitting to an operation if the displacement of her womb is to be corrected. Before the injury she was a well, strong woman, able to do hard work, but cannot do such work since. She was under the care of the doctor throughout the time from the injury to the date of the trial, and was still suffering therefrom when she went to the hospital the second time.

The defendant's evidence admitted the collision, but asserted that it was very slight, causing a jar, but not a severe one. Its evidence was further to the effect that it knew of no one being carried off the car or being injured; that no report of any injury was made to the company. Concerning the collision the conductor testified:

"Q. I will get you to state, Mr. Crandell, what, if anything, unusual occurred at Twenty-Ninth and Main street on this morning? A. Well, I couldn't say there was anything unusual. Our car was running very slow, I should judge above five miles per hour, when the front end of our car ran into the rear end of another car. It caused a jar in the car, but not a severe one, but I know there were several people who said they were shaken up. I took the names of about three or four and possibly five people, but none of them I would say was injured, but if they were it was very slightly."

And the motorman testified:

"Q. Just state in your own words how your car ran into the other car, and at what place? A. I was running north on Main street at about Twenty-Ninth street, and was going at about the rate of five miles per hour, and when I saw the car in front of me, I immediately applied my brakes and stopped car at about the time my car collided with the other."

Also the defendant introduced the evidence of a witness by the name of Sherwood, who testified that he had known the plaintiff for ten years, and during that time she was a woman of apparently poor health; that about four years before the trial she fell on the ice and injured her back and head; since that fall she has been getting worse; that he assisted her to her home, where she remained in bed for about four weeks. He did not know the name of the physician who attended her and never inquired.

The plaintiff denied that she ever had a fall on the ice, and a number of witnesses testified to her good health and ability to do hard work prior to the injury on the car and of her long disability on account thereof and her subsequent inability to work. There was evidence from her physician that her condition is permanent.

It is urged that plaintiff's petition pleaded specific negligence, and that her instructions 1 and 2 submitted the case upon general negligence. Of course, if this be true, then the judgment must be reversed, and the cause remanded.

The allegation of negligence is as follows:

"The defendant, its agents, servants, and employees in charge of and operating the car upon which the plaintiff was riding as a passenger, when it reached a point at or near the intersection of Twenty-Ninth and Main streets in said city, carelessly and negligently caused and permitted said car on which plaintiff was a passenger to strike and collide with another car upon the same track operated in the same direction by the defendant bound north to the downtown district; that said car at the said time plaintiff took passage thereon was overloaded and crowded, wherein plaintiff was compelled and required to stand in the vestibule, the front part of the car; that at the time of the collision and contact with said forward car plaintiff was thrown with great force and 'violence against the iron railing encircling the motorman, the framework, and to the floor of said car and received serious, lasting and permanent injuries, as hereinafter alleged, all by reason of the carelessness and negligence of the said defendant, its servants, agents, and employees, in the management, operation, and control of its said cars, whose duty it was to carry said plaintiff safely to the point of destination."

Plaintiff's instruction told the jury that, if plaintiff was a passenger on said car, defendant's obligation was —

"to use the highest degree of care practicable among prudent, skillful, and experienced men in that same kind of business to carry her safely, and a failure of the defendant (if you believe there was such a failure) to use such highest degree of care would constitute negligence on its part; and defendant would be responsible for all injuries resulting to the plaintiff, if any, from such negligence, if any. And if you believe from the evidence that there was a collision between two street cars of defendant on one of which plaintiff was a passenger (if you believe she was a passenger thereon), the presumption is that it was occasioned by the negligence of the defendant, and the burden of proof is cast upon the defendant to rebut this presumption of negligence and establish the fact that there was no negligence on its part, and that the injury, if any, was occasioned by inevitable accident, or by some cause which such highest degree of care could not have avoided."

Plaintiff's second instruction...