Lyons v. Metropolitan St. Ry. Co.

• Decision Date: 06 December 1913
• Citation: 253 Mo. 143,161 S.W. 726
• Parties: LYONS v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

161 S.W. 726

253 Mo. 143

LYONS v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 6, 1913.

1. EVIDENCE (§ 80)—PRESUMPTIONS—LAW OF OTHER STATE.

In an action for personal injuries sustained in Kansas, where neither party proved the law of Kansas, the law of Missouri applied, and plaintiff would not be denied a recovery because of his failure to prove the law of Kansas.

2. EVIDENCE (§ 80)—PRESUMPTIONS—LAWS OF OTHER STATES.

In the absence of a showing to the contrary, the laws of a sister state will be presumed to be the same as that of the former.

3. STREET RAILROADS (§ 117)—ACTIONS FOR INJURIES—QUESTIONS FOR JURY.

In an action for injuries in a collision between a street car and a buggy, where the motorman admitted that he saw plaintiff's horse before plaintiff could see the car, and realized that a collision was imminent, and there was evidence that by ordinary care he could or ought to have seen the horse before he actually did, and that with the appliances at hand he could have stopped the car after reaching the point from which he first saw the horse, and before reaching the point of collision, the court did not err in submitting the case upon the humanitarian theory; since the motorman's duty to stop or slacken the speed of his car did not commence merely when the horse was actually on the track, but commenced when he, as a prudent motorman, could see that plaintiff was intending to cross the track, oblivious to danger.

4. STREET RAILROADS (§ 90)—LIABILITY FOR INJURIES — INJURIES AVOIDABLE NOTWITHSTANDING CONTRIBUTORY NEGLIGENCE.

The motorman in charge of a street car, after discovering a vehicle in danger, was bound to use all reasonable effort consistent with the safety of persons on board the car to avoid a collision.

5. APPEAL AND ERROR (§ 882)—REVIEW—INVITED ERROR.

In an action for injuries sustained in a collision with a street car, defendant could not complain that instructions correctly stating and applying the humanitarian doctrine conflicted with instructions given, at its request, on the subject of contributory negligence, which ignored the humanitarian doctrine.

6. EVIDENCE (§ 474)—OPINION EVIDENCE— COMPETENCY OF EXPERTS.

In an action for injuries sustained in a collision between a street car and a buggy, where the driver of the buggy testified that he had frequently ridden in street cars, noticed their speed, and had occasion to estimate it at times, and, though given an opportunity, defendant's counsel declined to examine him further as to his qualifications, he was properly permitted to testify as to the speed of the car.

7. EVIDENCE (§ 539 ½)—OPINION EVIDENCE— COMPETENCY OF EXPERTS.

In an action for injuries sustained in a collision with a street car, a witness who for more than a year had been in defendant's employ as a motorman and conductor, was familiar with its cars of the class to which the one which injured plaintiff belonged, had operated such cars, knew their equipment and the methods of stopping them, had seen the tracks where the accident occurred, had been over the curve there several times and knew there was a grade at that point, was properly permitted to testify respecting the distance within which the car could have been stopped.

8. EVIDENCE (§ 548)—OPINION EVIDENCE— HYPOTHETICAL QUESTIONS.

In an action for personal injuries, questions asked the physician who treated the injuries and the surgeon who operated therefor, as to whether the conditions discovered by them could have been the result of the accident, which questions hypothesized the facts of the accident as detailed by plaintiff's witnesses, were properly admitted.

9. DAMAGES (§ 158)—ACTIONS FOR INJURIES —EVIDENCE ADMISSIBLE UNDER PLEADINGS.

In an action for personal injuries, where the petition alleged that plaintiff's kidney was crushed and that he was otherwise injured internally, and there was evidence that the condition of his kidney disclosed by an operation was due to traumatism, resulting in a fracturing of the urinary or secreting parts of the kidney followed by a leakage of the urine into the fatty tissue surrounding the kidney, and that the kidney was fractured or cracked, evidence that the urine on examination after the injury and before the operation was found to contain blood cells, indicating that blood was getting into the urine was not outside the issues, the examination being simply one of the methods which disclosed the condition of the kidney and led to the operation.

10. DAMAGES (§ 185)—ACTIONS FOR INJURIES —SUFFICIENCY OF EVIDENCE.

In an action for personal injuries sustained in a collision with a street car, where physicians who treated plaintiff and the surgeon who operated upon him testified that the condition of his kidney was due to traumatism, and that the injury received in the collision could have caused such condition, there was no evidence that he had received any other injury which could have produced such condition and the surgeon testified that he never found it to be present in a case of disease, the evidence showed sufficiently that such condition resulted from the collision.

11. NEW TRIAL (§ 124)— MOTIONS — SUFFICIENCY.

A motion for a new trial on the ground of newly discovered evidence, which neither stated the evidence, gave the names of any witnesses, nor stated the diligence used before the trial, was insufficient and properly denied.

12. NEW TRIAL (§ 108)—NEWLY DISCOVERED EVIDENCE—SUFFICIENCY.

Alleged newly discovered evidence produced on a motion for a new trial held to be of such slight probative force and the counter affidavits of such great probative force that

the motion might properly have been denied on the ground that there was no reasonable probability that a different result would be produced on a new trial by such evidence.

13. DAMAGES (§ 132)—EXCESSIVENESS—PERSONAL INJURIES.

Plaintiff, 37 years old, strong and active, and in the real estate business, was injured in a collision with a street car. He was not immediately disabled, but suffered much pain, and a few hours afterward took to his bed where he remained for six days. There were no external wounds or bruises. On June 29, 1908, 13 days after the injury, he was again confined to his bed and a physician called. On August 3d, a serious operation was performed. The kidney was exposed, the lymphatic capsule dissected loose and found to be hard and compressed. It was then stripped, the kidney opened and a drainage tube put in place in the kidney, through which the urine was discharged for four months. The operation necessitated the handling of nerves causing pain requiring two weeks or more to disappear. He was in the hospital for six weeks, and, though his condition was considerably improved by the operation, the kidney hung lower than it should, interfering with its function and causing pain. This condition was permanent unless corrected by another operation. He suffered from nervousness and insomnia, prior to the operation suffered agonizing pain, and thereafter suffered considerable pain down to the time of the trial in February, 1909, at which time walking was painful. Held, that a verdict for $17,500 was excessive and required a new trial unless plaintiff would remit all in excess of $10,000.

Bond, J., dissenting in part.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by Claude H. Lyons against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed conditionally.

John H. Lucas and Chas. N. Sadler, both of Kansas City, for appellant. John T. Barker, of Jefferson City, and Sparrow, Page & Rea, of Kansas City, for respondent.

BLAIR, C.

This is an action for damages for injuries plaintiff alleges he received when one of defendant's cars collided, at the crossing of Fifth street and Haskell avenue, Kansas City, Kan., with a buggy in which plaintiff and his brother-in-law were riding. The negligence charged in the petition is (1) negligent, careless, and reckless speed; (2) a negligent, careless, and reckless failure to give warning of the car's approach to the crossing; and (3) that defendant's servants in charge of the car did not employ proper care to either slacken speed or stop the car after they saw, or by the exercise of reasonable care could have seen, plaintiff on said crossing. Then follow allegations as to the injuries suffered. The answer was a general denial. There was a judgment for plaintiff for $17,500, and defendant appealed.

I. It is contended that since Kansas was the scene of the injury there was no cause of action unless the laws of Kansas gave it, and that, as a consequence, pleading and proof of the law of Kansas giving a cause of action in the circumstances was an indispensable prerequisite to a recovery. No law of Kansas was pleaded or proved by either party.

In Thompson v. Railroad, 243 Mo. loc. cit. 349, 148 S. W. 484, plaintiff sought damages for personal injuries received in Arkansas, and this court unhesitatingly held that, since "no statute or other law of Arkansas" was pleaded, the applicatory law was that of the forum; and in Biggie v. Railroad, 159 Mo. App. loc. cit. 351, 140 S. W. 602, the rule was stated to be that in a case of this kind, "in the absence of a showing to the contrary, it will be presumed the laws of a sister state are the same as our own." There is a difference between these two principles (Cherry v. Sprague, 187 Mass. 113, 72 N. E. 456, 67 L. R. A. 33 and note, 105 Am. St. Rep. 38), but it is not of a character such as materially to affect the question raised in this case, and need not be discussed. Under both views the trial court was right in trying the case under our law.

The cases cited by defendant's counsel (Mathieson v. Railroad, 219 Mo. loc. cit. 542, 118 S. W. 9, and Newlin v. Railroad, 222 Mo. loc. cit. 391, 392, 121 S. W. 125) were both actions founded on Kansas statutes, pleaded and proved, and must be read...