Lutz v. Metropolitan St. Ry. Co.

• Decision Date: 04 February 1907
• Citation: 100 S.W. 46,123 Mo. App. 499
• Parties: LUTZ v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

100 S.W. 46

123 Mo. App. 499

LUTZ v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

February 4, 1907.

Rehearing Denied March 2, 1907.

1. TRIAL—RECEPTION OF EVIDENCE—OBJECTIONS.

No objection to a question having been made before it was answered by a witness, an objection then made came too late.

2. EVIDENCE — EXPERTS — TESTIMONY INVADING PROVINCE OF JURY.

In an action for injuries to a passenger, a hypothetical question asked a physician testifying for defendant, which called for his conclusion as to whether the result complained of was produced by the fall in the car, and not for his opinion as to whether such manner of fall might or could produce the condition from which plaintiff was suffering, was objectionable, since it was for the jury whether the fall did produce the injury.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by Kate Lutz against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas and Chas. A. Loomis, for appellant. Fyke & Snider, for respondent.

ELLISON, J.

This is an action for personal injury alleged to have been received by the plaintiff just after she entered one of the defendant's street cars as a passenger thereon. The result in the trial court was for the plaintiff.

It appears from evidence in plaintiff's behalf that when she entered into defendant's car, and before she had time to become seated in one of the seats, the car was suddenly started forward with a violent jerk, which threw her with violence against a stove and onto the floor of the car, whereby she was seriously injured. The first objection to the judgment is that error was committed in not sustaining defendant's motion to strike out a question asked of a certain physician who had waited upon plaintiff. Plaintiff's counsel asked: "Now, doctor, you say she seemed to be suffering great pain? A. Yes, sir. Q. Now to what do you attribute that? A. Attribute it to the injury she told me of, I know of no other reason for it." Defendant's counsel then moved the court "to strike out that question, because it is not a proper hypothetical question; based upon statements of a party, not evidence; does not state all the facts in evidence; gives the opinion and conclusion of the witness upon an issue of fact which it is the duty of the jury to try and determine"—which the court overruled. The objection was not well taken. No reason appearing to prevent it, the objection should...