Kingsley v. Kansas City

• Decision Date: 27 May 1912
• Citation: 148 S.W. 170,166 Mo.App. 544
• Parties: HATTIE M. KINGSLEY, Respondent, v. KANSAS CITY, Appellant
• Court: Kansas Court of Appeals

148 S.W. 170

166 Mo.App. 544

HATTIE M. KINGSLEY, Respondent, v. KANSAS CITY, Appellant

Court of Appeals of Missouri, Kansas City

May 27, 1912

Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.

AFFIRMED.

Judgment affirmed.

John G Park, J. W. Garner and F. M. Hayward for appellant.

(1) The court below erred in admitting evidence of the number and ages of plaintiff's children. Williams v Railroad, 123 Mo. 573; Stephens v. Railroad, 96 Mo. 217; Dayhard v. Railroad, 103 Mo. 570; Mahoney v. Railroad, 108 Mo. 191; Railroad v Powers, 74 Ill. 341; Shaw v. Boston, 8 Gray (Mass.) 45; Railroad v. Books, 57 Pa. St. 339; Crouse v. Chicago, etc., 102 Wis. 196; Penn. Co. v. Roy, 102 U.S. 451. (2) The court erred in permitting counsel for respondent without rebuke to assert to the jury that it was the duty of counsel for appellant to win the case by any means he could. Gibson v. Zeibig, 24 Mo.App. 65; Norton v. Railroad, 40 Mo.App. 642; McDonald & Co. v. Cash, 45 Mo.App. 66; Ensor v. Smith, 57 Mo.App. 584; Thompson v. Bernays, 85 Mo.App. 575; Harper v. Telegraph Co., 92 Mo.App. 304; Schutte v. Transit Co., 108 Mo.App. 21; Beck v. Railroad, 129 Mo.App. 24. (3) The court erred in giving instruction 1-P in not instructing the jury that defendant was entitled to a reasonable time after knowledge of defect in the sidewalk to repair such sidewalk. Pearce v. Kansas City, 156 Mo.App. 230; Ballard v. Kansas City, 126 Mo.App. 541; Richardson v. Marceline, 73 Mo.App. 360; Plummer v. Milan, 79 Mo.App. 439; Ball v. Neosho, 109 Mo.App. 683; Maus v. Springfield, 101 Mo. 613; Badgley v. St. Louis, 149 Mo. 122; Young v. Webb City, 150 Mo. 333; Bautian v. Young, 152 Mo. 317. (4) The verdict is excessive, the result of passion and prejudice. Collins v. Jamesvill, 107 Wis. 437.

Brewster, Kelley, Brewster & Buchholz for respondent.

OPINION

JOHNSON, J.

Plaintiff recovered a judgment for $ 5000, for personal injuries she alleges in her petition were caused by the negligence of defendant in failing to maintain a public sidewalk in reasonable repair. Defendant appealed and its counsel attack the judgment on four grounds, viz.: first, that the court erred in admitting evidence of the number and ages of plaintiff's children; second, that the court allowed improper remarks to the jury made in the closing argument of plaintiff's counsel to stand unrebuked; third, that the first instruction given at the request of plaintiff was erroneous in not allowing defendant a reasonable time to repair the alleged defect after receiving actual or constructive knowledge of its existence; and, fourth, that the verdict is so excessive as to compel the conclusion that it is the product of passion and prejudice. The injury occurred at night February 15, 1910, on the sidewalk on the east side of Washington street between Seventh and Eighth streets in Kansas City.

Plaintiff, a stout woman forty-one years old, was walking on the sidewalk in the company of her husband, when she stepped in a hole caused by the absence of brick that had become loose and displaced and fell heavily to the sidewalk, sustaining the injuries of which she complains. The evidence of plaintiff tends to show that the defect had existed for more than three months and that the city had been given actual notice thereof before the injury in ample time to have repaired the place had reasonable care been exercised. Before the injury plaintiff weighed 189 pounds, was strong and in good health and had borne three children, the youngest of which was ten years old. Her fall produced no broken bones but severely bruised her back and hips. She was carried into her home which was nearby and on the way exhibited symptoms of severe shock. She had a profuse hemorrhage from the uterus and it was found afterward that this organ had become retroverted and inflamed and that other internal organs, the ovaries, Fallopian tubes and kidneys, were inflamed, swollen and diseased. In addition to the great pain caused by such condition, incontinence of urine has resulted. The expert evidence of plaintiff is to the effect that this condition is permanent, can be relieved only by a major operation of the gravest nature and that if unrelieved, plaintiff will be a hopeless invalid the remainder of her life.

The evidence of defendant pictures the condition of plaintiff in far less gloomy colors and there is expert evidence tending to show that her ill health is not the result of traumatism but is due to climacteric or organic causes or to the ravages of disease. Defendant endeavored to prove that plaintiff had suffered three miscarriages before her injury, was in ill health and was undergoing one of the important sexual changes peculiar to women. A deposition of plaintiff taken by defendant before the trial was read in evidence and discloses that defendant's counsel interrogated plaintiff about the number and ages of her children and the state of her health prior to the injury. In the cross-examination of plaintiff at the trial counsel for defendant asked, "How many miscarriages had you prior to this? A. I had none. Q. Didn't you have three? A. No, sir. Q. Never had any miscarriages prior to this accident? A. Never did."

We quote from the testimony of a physician appointed by the court to examine plaintiff, elicited by counsel for defendant:

"Now, Doctor, I will ask you to state from your examination of her and the conditions that you found there what did you determine as to the conditions there and the length of time and so on? A. Well, I found a condition that could come from a considerable number of causes, and as to the length of time, no one could really honestly say. Q. Did it look like it was one of long standing or not? A. More than likely to be. Q. You said it could have come from many causes. What were those causes? A. Inflammation following child bearing, miscarriages, gonorrhea, and other infections of the womb. Q. Could the conditions you have found there come from even uncleanliness? A. I think not. "

"In the direct examination of plaintiff she was asked, "How many children have you? A. Three. Q. Are they living? A. Yes, sir. Q. Are they single or married? A. One of them is married."

Defendant objected and moved that the testimony be stricken out. Counsel for plaintiff said, "I want to ask it bearing upon the condition of her health." The court overruled the objection and motion and that ruling is the subject of the first point urged by defendant for a reversal of the judgment.

The rule is well settled in this state that in an action for personal injuries it is reversible error to permit the plaintiff to prove the number and ages of the members of his family. [Williams v. Railway, 123 Mo. 573; Stephens v. Railroad, 96 Mo. 207; Dayharsh v. Railroad, 103 Mo. 570; Mahaney v. Railroad, 108 Mo. 191.] The reason of the rule is apparent. Ordinarily such evidence is irrelevant to any issue in the case and the only purpose it could have would be to excite and inflame the jury and thereby to enhance the assessment of damages. But the rule should not obtain in cases where such evidence is pertinent to one of the issues contested by the parties. Defendant tendered the issue that plaintiff's condition of ill health was not due to her injury but to the congenital imperfection and weakness of her procreative organs or to some disease. The attempt to show that repeatedly she had suffered miscarriages was addressed to this issue as was the expert evidence that her condition might have been caused by a natural or diseased affection of her organs that would manifest itself by the inability to bear children. The facts, if they were facts, that she had been in apparent good health and had borne healthy children, had a direct bearing on the issue...