Looff v. Kansas City Rys. Co.

Decision Date18 December 1922
Docket NumberNo. 22472.,22472.
PartiesLOOFF v. KANSAS CITY RYS. CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Margaret Looff against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

E. E. Ball, of Kansas City, and L. T. Dryden, of Independence, for appellant.

Horace H. Blanton, E. J. Shannahan, and A. E. Watson, all of Kansas City, for respondent.

JAMES T. BLAIR, J.

This is an action for damages for injuries alleged to have resulted from the negligence of employés of appellant in starting a car from which respondent was in the act of alighting. The briefs do not state the facts in detail. It is unnecessary to do so in this opinion, as will appear from the character of errors assigned and discussed. The case has been reassigned.

I. Appellant makes three objections to instruction 1 given at respondent's instance:

(1) It is urged that the instruction is erroneous in that it failed to define the term "passenger." The instruction required the jury, before finding for respondent, to find, among other things, that respondent entered one of appellant's cars as a passenger and paid appellant the proper fare for transportation thereon. The testimony of respondent that she was a passenger was clear, and the testimony of the conductor of the car, a witness for appellant, was of the same character. Instruction 9, given for appellant, in detailing the facts necessary to be found before a verdict could be rendered for respondent, does not require a finding that plaintiff was a passenger. Appellant cites Nolan v. Rys., 250 Mo. 602, 157 S. W. 637. The distinction between that case and this is described in Breen v. United Rys. Co. (Mo. Sup.) 204 S. W. 521, and Beckner v. Rys. Co. (Mo. App.) 232 S. W. 745.

(2) It is insisted the instruction "fails to require plaintiff to prove her case by a preponderance of the evidence, or, in other words, did not place the burden of proof upon the respondent." Authorities are cited which state the familiar rule concerning the burden of proof. The instruction authorized the jury to find for respondent only in case they found from the evidence all the facts necessary to entitle her to a verdict. An instruction given at appellant's instance stated the rule requiring respondent to make out her case by the greater weight of the credible evidence before a verdict could be rendered for her. The contention now made is answered in Norris v. Railway, 239 Mo. loc. cit. 717, 718, 144 S. W. 783.

(3) It is contended that the instruction is bad because it did not require a finding that respondent was in the exercise of ordinary care for her own safety at the time she was injured. The answer of appellant contained no plea of contributory negligence, and there is no contention that respondent has proved herself guilty of contributory negligence as a matter of law. The present contention is fully answered in White v. Railroad, 250 Mo. loc. cit. 482, 157 S. W. 592; Taylor v. Street R. R., 256 Mo. loc. cit. 216, 165 S. W. 327.

II. Respondent testified that she had not been able to stand on her feet since her injury. There was evidence to the contrary. Appellant concedes it would have been proper to permit respondent to testify that "she had not walked without her crutches," etc., but insists that her testimony that she "had not been able to do so * * * was a conclusion; was invading the province of the jury." The cases cited are those in which experts testified that an existing condition was, in fact, the result of an injury. These decisions are not in point. The question is ruled against appellant in Dean v. Railroad, 229 Mo. loc. cit. 448, 129 S. W. 953; Hensley v. Rys. Co. (Mo. App.) 214 S. W. loc. cit. 289; and like decisions.

III. It is said the court erred in permitting respondent to testify that she suffered from "certain heart trouble" and "heart spells." Cases cited are Hall v. Coal & Coke Co., 260 Mo. loc. cit. 370, 168 S. W. 927, Ann. Cas. 1916C, 375, and the like. The petition in this case alleges, among other things, "that as a direct result of said injuries she suffered a lasting and permanent shock to her nerves and nervous system, and her heart has become so affected that she suffers with dizziness, cramps, and fainting spells." The experts testified that the injuries of which there was evidence could have produced the conditions thus alleged and to which respondent and physicians testified. Respondent's previous good health was shown. In the circumstances the point is ruled against appellant by the principle applied in Gaty v. United Rys., 286 Mo. 503, 227 S. W. loc. cit. 1045, 1046; Mayne v. Rys. Co., 287 Mo. 235, 229 S. W. loc. cit. 387, 388.

IV. Appellant asked and the court refused to give four instructions which, respectively, would have withdrawn from the jury all evidence of "any abnormal condition of" respondent on March 4, 1919, October 14, 1919, March 10, 1920, and May 8, 1920. It is said these instructions were designed to withdraw the evidence of fainting spells. The court's ruling was right for the reason given in the preceding paragraph and because the instructions covered and would have withdrawn all evidence of conditions of injury of any kind on the dates named.

V. Respondent testified concerning an examination by a physician in March, 1920. She said that during and following the examination she suffered pain, and after leaving the physician's office had a fainting spell. The physician testified that he made an examination and manipulated the limbs and parts to determine their condition with respect to injury. He said this resulted in pain to respondent and disclosed excessive tenderness. In support of its position that this testimony of respondent was erroneously admitted appellant cites cases like Stepp v. C., R. I. & P. Ry., 85 Mo. loc. cit. 233 and Harlan v. Ry. Co., 65 Mo. 22, which hold that there can be no recovery for an injury unless such injury resulted from defendant's act. The decisions cited do not condemn the court's ruling in this case. Here the testimony objected to, coupled with that of the physician, tended to show a condition of pain and susceptibility to pain which other testimony tended to prove could have resulted from the injury respondent's evidence tended to prove she received as a result of the negligence of appellant's employés. This satisfies the rule upon which appellant relies.

VI. Respondent was permitted to explain her failure to subpœna two witnesses by testifying that she understood or learned that one had gone to Chicago and one to Wyoming. Appellant insists this was mere hearsay, and therefore erroneously admitted. The authorities cited state the general rule respecting hearsay testimony. As an explanation of respondent's failure to produce the witnesses, the testimony was admissible for what it was worth. Whether respondent in good faith believed the witnesses were beyond the reach of a subpœna and in good faith refrained from subpœnaing them for that reason was a question for the jury. The record does not impress us with the idea that it shows these witnesses were...

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