Jones v. Springfield Traction Co.

• Decision Date: 20 April 1909
• Parties: JONES v. SPRINGFIELD TRACTION CO.
• Court: Missouri Court of Appeals

118 S.W. 675

137 Mo. App. 408

JONES v. SPRINGFIELD TRACTION CO.

St. Louis Court of Appeals. Missouri.

April 20, 1909.

Rehearing Denied May 11, 1909.

1. JURY (§ 116) — CHALLENGE TO PANEL — GROUNDS — BIAS OF OFFICER.

A challenge to the entire panel will lie for bias or partiality on the part of the officer who summoned the jury.

2. APPEAL AND ERROR (§ 945)—REVIEW— DISCRETION OF LOWER COURT—PREJUDICE.

An appellate court will not review the rulings of the trial court in matters of discretion, unless prejudice appears.

3. PLEADING (§ 420)—WAIVER OF OBJECTIONS —PLEADING AND PROCEEDING WITH TRIAL.

Where a motion to strike out an amended petition on the ground that it changes the cause of action declared upon in the original petition is overruled, and defendant excepts thereto, but files its answer and proceeds with the trial, the objection to the petition is waived.

4. PLEADING (§ 433)—OBJECTION TO PETITION—SUFFICIENCY AFTER VERDICT.

Where defendant files an answer and participates in the trial, the objection that the petition fails to state a cause of action relates to the sufficiency of the petition after verdict.

5. PLEADING (§ 433)—OBJECTIONS TO PETITION — SUFFICIENCY AFTER VERDICT.

In an action for injuries received while alighting from defendant's car, plaintiff alleged that she notified the conductor to stop at her destination, that the train stopped in obedience to her request, and while she was alighting the employés of defendant negligently started the train with a sudden jerk, thereby causing her to fall. Held, as against an objection made after verdict, that the petition was not defective in omitting to formally allege that defendant's servants knew that plaintiff was in the act of alighting.

6. CARRIERS (§ 303)—PASSENGERS—PERSONAL INJURIES—SETTING DOWN PASSENGERS.

A carrier's liability for injuries to a passenger caused by starting the car while she is alighting with care does not depend on the knowledge of its servants that she is in the act of alighting, where the car has been stopped in response to her request at a usual stopping place.

7. CARRIERS (§ 303)—PERSONAL INJURIES TO PASSENGERS—TIME ALLOWED FOR PASSENGERS TO ALIGHT.

Where a car is stopped for the purpose of allowing passengers to alight, it is the duty of the carrier to allow the passengers a reasonable time to alight in safety by exercising ordinary care.

8. EVIDENCE (§ 549) — EXPERT TESTIMONY — ANSWERS BASED ON FACTS TESTIFIED TO BY EXPERT.

An answer of a physician, called as an expert, to a hypothetical question, is not rendered inadmissible because of his testimony in the case as a physician as to the condition of the person injured, where nothing appears to show that his expert opinion is based on his knowledge of such injuries.

9. APPEAL AND ERROR (§ 1064)—HARMLESS ERROR—INSTRUCTIONS.

In an action against a carrier for injuries to a passenger, the court instructed that the jury should weigh the evidence by the same rules it would weigh it if the contest were between individuals, and should not give greater weight to the testimony of the witnesses for plaintiff "merely" because she is a girl and the defendant is a corporation. Held, that if it was error for the court to use the word "merely," because it would imply that otherwise it was proper to give greater weight to the testimony of plaintiff's witnesses than to those of defendant, the error was harmless.

10. CARRIERS (§ 321)—INJURIES TO PASSENGERS— ACTIONS—INSTRUCTIONS.

An instruction, in an action against a carrier for injuries received while alighting from a car, that, if defendant's servants stopped the car to let plaintiff alight, it was defendant's duty to hold the car a reasonable length of time to permit her to alight, and that if, on the car stopping, plaintiff immediately started to alight and acted with reasonable care and diligence, and defendant suddenly caused the car to start, thereby inflicting the injury, plaintiff should recover, is not erroneous for failure to submit the question whether the car was stopped a reasonable time and as ignoring the question of knowledge on the part of defendant that plaintiff was alighting.

Appeal from Circuit Court, Webster County; Argus Cox, Judge.

Action by Ollie Jones against the Springfield Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Dickey, Delaney & Delaney, for appellant. O. T. Hamlin, for respondent.

NORTONI, J.

The plaintiff is a minor. She sues by her next friend, duly appointed and qualified. The action is for damages alleged to have accrued to the plaintiff through personal injuries received while in the act of alighting from defendant's street car. Plaintiff recovered, and the defendant appeals. The case originated in the circuit court of Greene county. It was afterwards transferred by change of venue to the circuit court of Webster county, where the trial was had.

The first complaint on appeal relates to the action of the court in discharging the jury after it was impaneled to try the cause. The case coming on for trial, a jury was assembled and duly examined upon the voir dire, the respective parties made their challenges, and it was sworn to try the cause. The hour for the noon recess having arrived, the court thereupon took a recess until 2 o'clock. Immediately upon the reconvening of court in the afternoon, the plaintiff filed a motion to discharge the jury theretofore impaneled for the reason the deputy sheriff who selected the entire panel was biased and prejudiced against the plaintiff and was, moreover, under the influence of the defendant. This motion the court sustained and discharged the jury. There is no doubt that a challenge to the entire panel will lie for bias or partiality on the part of the officer who summoned the jury. 17 Amer. & Eng. Ency. Law (2d Ed.) 1112. The grounds, therefore, upon which the court proceeded in discharging the panel, were entirely proper, and, unless it appears the court abused its discretion in the matter, its action should be sustained. It is the rule that appellate courts will not review the rulings of the trial court in matters of discretion unless prejudice appears. Vojta v. Pelikan, 15 Mo. App. 471, 478. There is naught in the record indicating prejudice to the defendant. On questions of this nature, there are matters and things which frequently appeal to and properly influence the judgment of the trial court in the exercise of a sound discretion that may not appear in the record on appeal. On a charge so serious as that involved in the present instance, an appellate court should hesitate indeed before entering upon a review of a discretionary matter. From aught that appears, it may have been obvious to the court that the jury was unduly friendly to the defendant. The assignment will be overruled.

There are several amended petitions filed in the cause. The defendant moved to strike out the last-amended petition for the reason it changed the cause of action declared upon in the original petition. This motion was overruled, and defendant excepted thereto. It is now urged that the court erred in not striking out the last-amended petition. It will be unnecessary to examine minutely the question whether or not the last-amended petition stated a cause of action other than and different from that declared upon in the original. It appears in the original, and all of the amended petitions thereafter, that plaintiff alleged she was injured while alighting as a passenger from defendant's street car. The negligent act relied upon is that the car was started forward by a sudden jerk while she was in the act of alighting, thus precipitating her to the street and causing her injury. After defendant's motion to strike out the last-amended petition was overruled, it filed its answer thereto and proceeded with the trial. This action on its part operated to waive its right to have the ruling of the court on the motion to strike out reviewed, and this is true notwithstanding the fact that it had properly saved its exceptions to the ruling of the court on the motion. Were the defendant sincere in its motion to strike out the last-amended petition, it should have stood thereon, and not participated in the trial on the amended pleading. Having chosen to join issues thereon, it ought now to be precluded from making the trial court a place of chance and seek to have the trial on the merits, to which it had voluntarily joined issue, set aside for error committed, if at all, in the ruling on the motion. Scovill v. Glasner, 79 Mo. 449; Liese v. Meyer, 143 Mo. 547, 45 S. W. 282.

It is next argued that the judgment should be reversed for the reason the petition fails to state a cause of action. Having answered to the petition and participated in the trial, the question for decision relates to the sufficiency of the petition after verdict. The petition alleges, substantially: That the plaintiff became a passenger upon defendant's street car at Doling Park, destined to a point on Commercial street, near the intersection of Grant and Commercial streets, and paid her fare to the conductor for the transportation; that, when the car was within a reasonable distance of the point mentioned, plaintiff notified the conductor of her desire to alight at the intersection of said streets. It is averred that before the car reached there, and while it was still west of the point mentioned about 100 feet, in obedience to her request, it stopped for the purpose of...