Johnson v. Springfield Traction Company

• Decision Date: 24 February 1914
• Citation: 163 S.W. 896,178 Mo.App. 445
• Parties: MARTHA A. JOHNSON, Respondent, v. SPRINGFIELD TRACTION COMPANY, Appellant
• Court: Missouri Court of Appeals

163 S.W. 896

178 Mo.App. 445

MARTHA A. JOHNSON, Respondent, v. SPRINGFIELD TRACTION COMPANY, Appellant

Court of Appeals of Missouri, Springfield

February 24, 1914

Appeal from Greene County Circuit Court.--Hon. Guy D. Kirby, Judge.

AFFIRMED (on condition).

Judgment affirmed.

Delaney & Delaney, for appellant.

(1) The court erred in permitting so-called hypothetical questions to be propounded which did not embrace all the facts and circumstances in evidence in the case. Smith v. M. & K Tel. Co., 113 Mo.App. 429; Bragg v. Railway Co., 192 Mo. 331; Glasgow v. Railway Co., 191 Mo. 347; Spaulding v. City of Edina, 122 Mo.App. 65; State v. Forsha, 190 Mo. 296; Smith v. Kansas City, 125 Mo.App. 150; Baeher v. Union Co., 133 Mo.App. 541; Taylor v. Grand Ave. Co., 191 Mo. 347; Heiberger v. Tel. Co., 133 Mo.App. 452. (2) Before plaintiff can recover, the evidence must show that the accident and injury complained of caused the death of deceased. Byerly v. Light Co., 130 Mo.App. 593; Dunphy v. Stock Yds. Co., 118 Mo.App. 516; Trigg v. Ozark Co., 187 Mo. 227; Gorensson v. Mfg Co., 186 Mo. 300. (3) An instruction which by its terms and plain meaning covers the whole case and, on the facts therein stated, peremptorily directs a verdict for plaintiff must cover every phase of the case and must include the defences interposed. Stewart v. Andes, 110 Mo.App. 243; Scanlan v. Gulick, 199 Mo. 449; Austin v. Transit Co., 115 Mo.App. 146; Johnson v. Railroad, 117 Mo.App. 308; Rudd v. Fire Co., 120 Mo.App. 16; Abbott v. Marion Min. Co., 112 Mo.App. 550; Grier v. Strother, 111 Mo.App. 38; Flaherty v. Transit Co., 207 Mo. 318; Toncrey v. Railway Co., 120 Mo.App. 596; Balles v. Railway Co., 134 Mo.App. 696; Johnson v. Railway Co., 203 Mo. 381; Teddick v. Car Co., 125 Mo.App. 24; Percell v. Railway Co., 126 Mo.App. 43-53. (4) Instruction No. 3 is erroneous, because inconsistent and contradictory and because it assumes that the humane doctrine may apply even if the negligence of deceased directly contributed. Wallack v. St. Louis Transit Co., 123 Mo.App. 160. (5) The burden of proving that deceased was in imminent peril and was unconscious thereof and that had defendant been in the exercise of reasonable care he would have had knowledge of such facts in time to avert injury is upon the plaintiff. Burde v. Railway, 123 Mo.App. 634. (6) Negligence cannot be inferred from mere fact of accident. Lee v. Jones, 181 Mo. 291; Corvin v. St. Louis, 151 Mo. 345; Yarnell v. Railroad, 113 Mo. 580; Breen v. Cooperage Co., 50 Mo.App. 214.

George Pepperdine and Patterson & Patterson, for respondent.

(1) It is a well-settled practice in this State that contributory negligence is a matter of defense and should be pleaded in the answer, in order to be available as a defense to plaintiff's cause of action, and the plaintiff need not allege or prove that he was without fault at the time of the injury. Petty v. Railroad, 88 Mo. 306; Hudson v. Railroad, 101 Mo. 13; Young v. Iron Co., 103 Mo. 324; Meiley v. Railroad, 215 Mo. 587. (2) Instructions should be construed as a collective whole. McKinstry v. St. Louis Transit Co., 82 S.W. 106. (3) A court is warranted in refusing a party's instructions because of their multiplicity. Renshaw v. Fireman's Ins. Co., 33 Mo.App. 395; McAllister v. Barnes, 35 Mo.App. 674; Desberger v. Harrington, 28 Mo.App. 636; Kinney, Admx. v. City of Springfield, 35 Mo.App. 107; Doan v. Railway, 43 Mo.App. 454; Crawshaw v. Sumner, 56 Mo. 521. (4) Errors not materially affecting the merits are not ground for reversal. Orth v. Darschlieu, 32 Mo. 366; Phillips v. Evans, 64 Mo. 17; Crawford v. Cushman, 82 Mo.App. 554; Berkshen v. Railway Co., 144 Mo. 211; Boettger v. Scherpe & Koken Iron Co., 124 Mo. 87. (5) Points raised by the motion for a new trial, which are not urged in the brief or argument of counsel, will be considered as abandoned. Shaw v. Goldman, 183 Mo. 461. (6) Where appellant presents no argument on the propriety of a certain ruling of the lower court, the Court of Appeals is justified in assuming that the propriety of such ruling is confessed. Powell v. Palmer, 45 Mo.App. 236.

FARRINGTON J. Robertson, P. J., concurs in a separate opinion. Sturgis, J., dissents, in part, in a separate opinion.

OPINION

FARRINGTON, J.

This suit was brought by the widow of James Johnson against the Springfield Traction Company under section 5425, R. S. 1909, for wrongfully and negligently killing her husband in a collision of one of its street cars and a vehicle (or rather a kitchen safe in a vehicle) in which deceased was riding. A judgment for five thousand six hundred dollars is appealed from.

The facts surrounding the collision and bearing on the question of defendant's negligence were at this term of court passed upon in an opinion prepared by Judge STURGIS in the case of Marth A. Johnson v. Springfield Traction Company, 161 S.W. 1193. A full statement of such facts is set forth in that opinion, the only difference being that in that case Mrs. Johnson sued for her personal injuries sustained in the same collision whereas in this she sues under the death statute for the loss of her husband. Many of the instructions involved in this case were considered in the other case, and as that opinion, together with the files in the case, passed in review before the Supreme Court upon an application for a writ of certiorari, and the writ was denied, we are reassured that the questions touching the points in that case which are also in controversy here have been correctly decided and will therefore receive no further consideration in this opinion.

There are three questions raised by appellant that were not in the other case, and they are of such importance as to require very careful consideration. The first to be discussed relates to the contention that the plaintiff failed to show that the death of James Johnson was caused by the injury received in the collision. The second question concerns defendant's contention that it cannot be held for the error of judgment of its motorman in thinking he could pass with his car safely. Lastly, we will discuss the instructions on the measure of damages.

The record discloses that the collision occurred on September 2 1912, and that Johnson died on September 12, 1912. The uncontroverted evidence is that the deceased was unconscious, or possibly in a semiunconscious condition when he was lifted from the street and taken to the hospital, and that he remained so for at least two days. Some four or five days after the collision, erysipelas developed, and on the tenth day meningitis manifested itself, and this was the day before he died. The injuries were in the shoulderblade and on the head, the injury on the head causing immediately the unconscious condition. Doctor Evans, who was the first physician on the ground, and who attended Johnson in the hospital, was first asked by an attorney for the plaintiff: "Now I will get you to state what in your opinion as a physician caused Mr. Johnson's death?" This question was objected to by counsel for defendant and the objection sustained. He was then asked by plaintiff's counsel the following question: "I will get you to state whether or not if a person receiving such an injury as Mr. Johnson received there and had an injury on his head and other injuries that you speak of, I will ask you whether or not that might produce death?" Counsel for defendant objected "because the gentleman doesn't fully cover the case and because the witness is not qualified. He has testified he was there only part of the time and was not there at the time of death." The objection being overruled, the witness answered: "A person of his age, it would." Doctor Fulbright testified that he saw Mr. Johnson the day the injury occurred very soon after being taken to the hospital, and subsequently saw him several times before his death; that he attended the patient during the ten days, and that he never rallied thoroughly from unconsciousness; that erysipelas developed in four or five days; and that this disease could bring on meningitis, which he said was the disease causing Johnson's death. The evidence all tends to show that Johnson died as a result of the injuries received in the collision. Indeed, there is no fact proven or theory advanced by the defendant denying that Johnson was injured and that he received the injuries testified to by plaintiff's witnesses, or that the erysipelas, meningitis and death were brought on by any intervening cause. There is uncontroverted testimony in the record that erysipelas is an infectious disease, and that it can originate only through an abrasion, and that it is impossible to tell just when the wound or abrasion becomes infected with the erysipelas. Therefore, defendant insists that the physician having sworn that Johnson died from meningitis, and that the form of meningitis from which he died may come from erysipelas, and that it is impossible to tell when the infection causing the erysipelas entered the wound, there is a failure to connect the death with the wounds or abrasions received in the collision, and that defendant could not reasonably expect erysipelas and meningitis to follow even though its servants were negligent in causing the wounds or abrasions. This is fallacious as the testimony all shows that erysipelas manifests itself only through a wound or abrasion. It is therefore readily seen that if this is the only way in which an injured person may be infected with erysipelas, those who cause such wounds or abrasions may expect that erysipelas will or may follow as a natural consequence of such injury. There is no showing by the defendant that the deceased at any time prior to the collision had erysipelas, or that he received any wound, or was subjected to...