Kraus v. Kansas City Public Service Co.
| Decision Date | 12 July 1954 |
| Docket Number | No. 43824,No. 2,43824,2 |
| Citation | 269 S.W.2d 743 |
| Parties | KRAUS v. KANSAS CITY PUBLIC SERVICE CO |
| Court | Missouri Supreme Court |
Charles L. Carr, R. Carter Tucker, John Murphy, William H. Wilson, J. Gordon Siddens, Rex E. Brown, Tucker, Murphy, Wilson & Siddens, Kansas City, for appellant.
Gregory E. Hodges and Jim T. Reid, Kansas City, for respondent.
WESTHUES, Commissioner.
This is a suit for damages filed by plaintiff against the Kansas City Public Service Company. A trial by jury resulted in a verdict for plaintiff for $9,500. The defendant appealed. Plaintiff's injuries for which she seeks damages were sustained when on February 13, 1949, she fell from a bus operated by the defendant. Plaintiff's fall occurred as she was ascending the steps of the bus and the principal issue at the trial was whether plaintiff's fall was due to negligence on part of the operator of the bus or whether plaintiff's fall was due to illness. Defendant urges that the evidence was insufficient to sustain a finding that the fall was due to defendant's negligence.
The evidence disclosed the following: At the time she was injured, plaintiff was 70 years of age; she was employed as a practical nurse. At about 9:30 p.m., on the above-given date, she attempted to board one of defendant's westbound busses on Lexington Street where it intersects Pleasant Street. The weather was cold and the streets were covered with ice and snow. The bus stopped and plaintiff, when she attempted to board the bus, started slipping; the steps were moist or wet; when she reached the third step, she slumped forward and the bus driver reached to help her but before he could do so plaintiff fell backward off the bus. Plaintiff suffered a laceration of the scalp and was rendered unconscious. She was taken to a hospital where it was discovered that paralysis had developed in her left arm and leg and her right eyelid drooped. There was evidence from which a jury could have found that the defendant's operator of the bus was not negligent and that plaintiff's fall was due to fainting or a cerebral hemorrhage. We are primarily concerned with the question of whether the jury was justified in finding that plaintiff's fall was due to negligence on part of the operator of the bus.
The case was submitted to the jury on a charge of negligence that the operator of the bus at the time he attempted to aid plaintiff left his position at the controls and failed to set the brake so that the bus rolled forward and that the movement of the bus caused the plaintiff to fall. Plaintiff testified that as she reached the top step the following occurred
'
'
A number of witnesses for plaintiff testified with reference to the movement of the bus. It will not be necessary to detail the evidence of these witnesses. However, we desire to refer to the evidence of a number of defendant's witnesses. Clarence E. Thompson testified as follows:
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According to Clarence R. Conwell, the following occurred:
* * *
* * *
The medical evidence as to plaintiff's injury was that plaintiff could have had a spontaneous hemorrhage which caused her to fall from the bus. Dr. John G. Sheldon testified he had treated plaintiff both before and after her injury; that in his opinion, based on the history of plaintiff's recovery, she did not have a spontaneous hemorrhage but that such hemorrhage was the result of her fall from the bus. The court at defendant's request gave the jury specific instructions that defendant was not liable if plaintiff's fall was due to 'a heart attack or small cerebral blood vessel hemorrhage or cerebral accident.' We are not authorized to disturb the finding of the jury where there is evidence to support such finding. The evidence in this case was sufficient to support the verdict.
The defendant offered in evidence the hospital record with reference to plaintiff's treatment. The trial court excluded the following portion of the record made at the time plaintiff entered the hospital:
Under 'Chief complaint: Date and mode of onset, probable cause, course' of the printed form, the following was typewritten:
The evidence in this case was that plaintiff was unconscious when she reached the hospital and had been in such state since the fall from the bus. There was no showing that plaintiff gave the information contained in the portion of the record rejected by the court. The record indicates she did not give such information. The trial court was justified in excluding that portion of the record. The statute, Section 490.680, RSMo 1949, V.A.M.S., authorizes the admission of such records if made in the regular course of business 'and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.' (Emphasis ours.) The trial court was justified in holding that the sources of information of the portion excluded were not such as to justify its admission in evidence. Melton v. St. Louis Public Service Co., Mo.Sup., 251 S.W.2d 663, loc. cit. 671(18, 19).
The defendant, in its brief, says the trial court erred in giving plaintiff's offered instruction on the measure of damages. The complaint is that the instruction 'is argumentative and is an undue comment on the evidence by reason of the use of the emotional word 'endured'.' The word 'endured' was used in place of the word 'suffered' which is ordinarily employed in such instructions. 'Endured' is classified as a synonym of 'suffered' and vice versa. Webster's New International Dictionary, 2nd Ed. We are unable...
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