Loker v. Southwestern Missouri Electric Railway Company
| Decision Date | 05 May 1902 |
| Citation | 68 S.W. 373,94 Mo.App. 481 |
| Parties | GUSSIE M. LOKER, Respondent, v. SOUTHWESTERN MISSOURI ELECTRIC RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.
AFFIRMED.
Judgment affirmed.
McReynolds & Halliburton for appellant.
(1) The court erred in excluding the evidence of Dr. J. R. Freed, as to the character and extent of plaintiff's injuries. Plaintiff having voluntarily offered herself as a witness testified fully as to the character and extent of her injuries and the treatment received from the various physicians. She waived the right to object to Dr. Freed testifying. Cramer v. Hurt, 154 Mo. 120; Lane v Boicourt, 25 Am. St. 442; Webb v. Railway, 89 Mo.App. 604. (2) The amount of the verdict in this case is excessive and unreasonable, and a reading of the evidence shows the verdict to be the result of bias, prejudice or partiality, and not the result of the evidence. All the evidence except plaintiff's individual testimony showed that the only serious injury was the fractured wrist, and that had become well, plaintiff being contradicted as to the extent of her injuries by R. B. Tyler, A. H. Rogers, Junior Jones, A. Wagoner, T. A. Short, A. Strite, James Asby, --- Fillmore, Paul Holmes and Charles Dumars, and the only way the jury could have made their finding for the amount they did was by wholly disregarding the evidence of these witnesses and basing it solely on plaintiff's individual testimony. This, with the fact that plaintiff declined to call the physician, who waited on her for four or five weeks immediately after the injury, and objected to his testimony on behalf of the defendant, should condemn the verdict. State v. Prendible, 65 S.W. 559; Hollenbeck v Railroad, 141 Mo. 97; Boggess v. Railway, 118 Mo. 328; Fairgrieve v. Moberly, 29 Mo.App. 141, and cases cited; Logan v. Small, 43 Mo. 254; Baldridge v. Bryan, 3 Mo. 371; Garner v. Railroad, 34 Mo. 240; Empey v. Railway, 45 Mo.App. 422; Lee v. Knapp & Co., 137 Mo. 385; Chilty v. Railway, 65 S.W. 959.
Thomas & Hackney for respondent.
(1) The trial court committed no error in refusing to permit Dr. Freed to answer the question. Sec. 4659, R. S. 1899. (2) The defendant did not, by any offer, disclose to the trial court what it expected to prove by Dr. Freed, touching the nature of the break in plaintiff's arm, nor that Dr. Freed could explain the nature of the break. Hence, this court is unable to determine from the record whether the rejected evidence is material or not. Bank v. Aull, 80 Mo. 199; Jackson v. Hardin, 83 Mo. 175; Sweet v. Sullivan, 77 Mo.App. 134; State v. Douglass, 81 Mo. 235. (3) This court can not say that the damages are excessive. This case has been twice tried. The first jury returned a verdict assessing plaintiff's damage at $ 3,000. This verdict was set aside by the trial court on the sole ground that the verdict was excessive. The second trial resulted in a verdict for $ 2,500. The trial court, having set aside one verdict on the ground that it was excessive, thereby exhausted its power in that respect. Secs. 725, 801, R. S. 1899; O'Neil v. Young, 58 Mo.App. 633; McShane v. Sanderson, 108 Mo. 316; McFarland v. Accident Association, 124 Mo. 204.
--The plaintiff sued to recover for personal injuries received while a passenger on one of defendant's cars. The defendant operates an electric railway in the city of Carthage, Missouri. The car on which she was a passenger was wrecked, it is admitted, by the negligence of defendant's motorman, who was operating the car at the time of the accident. And it is further admitted that the plaintiff was injured by reason of said accident, but it is claimed that such injuries were slight, and that the verdict is excessive, and the result of bias and prejudice on the part of the jury. There is only one other objection made and that is, the court erred in refusing competent testimony offered upon the part of the defendant.
The plaintiff's evidence tended to show that her right arm was broken, and that her spine was injured; that her neck was bruised and painful for several weeks after the injury; that she was injured in the loins; and that her nose was injured and ankle sprained. She stated at the trial that her arm was crooked, and that she did not have much use of it; that her hand was stiff and her wrist would not bend; that she could not lift things with any weight; and that she could not grasp things. She further testified that her nerves had been seriously affected, and that she had not been able to sleep well since the wreck. She exhibited her arm to the jury and stated that: "The bones on the third finger on my right hand lie a great deal lower than those of my left on account of the bones in my wrist being pushed underneath the others, causing them to draw down." The plaintiff was evidently a fluent talker, and stated many other important facts, but we omit them, as the object is not to incorporate her entire evidence in this opinion.
Witnesses, Mrs. B. F. Thomas and S. M. Weddell, tended in many particulars to corroborate the evidence of the plaintiff. Dr. L. E. Whitney, who was her physician part of the time, and who had examined her recently, testified as to a tenderness in her spine and as a consequence to a disturbance of her nerves. He also stated that her arm will never be like it was before the injury. On the other hand, the defendant introduced evidence strongly tending to show that the plaintiff was magnifying her injuries and feigning suffering; that she was seen to use her broken arm in getting on and off cars, and in handling goods in her husband's store. In reply she denied all this.
The jury evidently believed her and her witnesses as to the extent of her injury and suffering. We are not prepared to say, in view of all the evidence,...
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