MacDonald v. Metropolitan St. Ry. Co.

• Decision Date: 31 March 1909
• Citation: 118 S.W. 78,219 Mo. 468
• Parties: MacDONALD v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

118 S.W. 78

219 Mo. 468

MacDONALD v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

Rehearing Denied April 13, 1909.

1. APPEAL AND ERROR (§ 585) — RECORD — ABSTRACT — ADDITIONAL ABSTRACT—NECESSITY.

Where the answer contained in the abstract was a general denial, and appellee filed no counter or additional abstract, she cannot contend that the trial answer contained a plea of contributory negligence.

2. APPEAL AND ERROR (§ 1039)—HARMLESS ERROR.

Whether the answer filed below contained a plea of contributory negligence is immaterial on appeal, where that issue was not submitted to the jury.

3. EVIDENCE (§ 570) — OPINION EVIDENCE — WEIGHT.

The testimony of physicians is merely advisory, and the jury can give it credence or not as it seems reasonable.

4. CARRIERS (§ 320)—PASSENGERS—ACTIONS—JURY QUESTION—CAUSE OF DEATH.

In an action for the death of a street railway passenger by being thrown against a stove by the derailment of the car, whether defendant's death was proximately caused by the injuries sustained held for the jury.

5. CARRIERS (§ 305)—PASSENGERS—INJURIES —PROXIMATE CAUSE.

If a street car passenger's death was directly caused by being thrown against a stove in the car by a derailment, recovery could be had therefor, even though he had also suffered from rheumatism, etc., provided he would not have died when he did if he had not been thrown against the stove.

6. CARRIERS (§ 314)—PASSENGERS—ACTIONS— PLEADING—NEGLIGENCE.

In action for injury to a passenger, plaintiff may plead negligence generally, and rely upon the doctrine of res ipsa loquitur, and allegations that decedent's death was caused by the sudden derailment of the car because of the negligent condition of the appliances or the negligent management of the car by the employés only charged negligence generally, and did not allege any particular acts of negligence.

7. CARRIERS (§ 316) — PASSENGERS — NEGLIGENCE— RES IPSA LOQUITUR.

Where decedent was injured by being thrown against the stove by the sudden derailment of a street car, in an action for his death plaintiff could assume that the derailment was caused by negligence, and if the company did not show its want of negligence, or that the accident was caused by an independent cause, it would be conclusively presumed that the accident was caused by its negligence.

8. APPEAL AND ERROR (§ 173)—REVIEW— THEORY BELOW.

Where the case was tried below on the theory that defendant conceded its negligence, which all of the instructions assumed, it cannot deny its negligence for the first time on appeal.

9. NEGLIGENCE (§ 58)—PROXIMATE CAUSE.

While an action will not lie for a negligent injury which could not possibly have been foreseen, it is not essential that the very injury complained of could not have been foreseen by exercising reasonable prudence, but the wrongdoer is liable if the injury was a natural and probable consequence of the negligent act, whether it could have been foreseen or not.

10. TRIAL (§ 252)—INSTRUCTIONS—CONFORMITY TO EVIDENCE.

In an action for a passenger's death by heart disease, claimed to have been caused by being thrown against a stove in a street car derailment, where there was no substantial evidence that heart disease could not, by any possibility, have been anticipated as a result of such an injury, an instruction negativing defendant's liability if such an injury could not have been foreseen was not required.

11. EVIDENCE (§ 363)—DOCUMENTARY EVIDENCE—MEDICAL BOOKS.

Medical books cannot be read to the jury as independent evidence.

12. EVIDENCE (§ 558) — EXPERT WITNESSES— CROSS-EXAMINATION.

Where, in a personal injury action, medical witnesses based their testimony on their knowledge derived from books as well as from experience, counsel, on cross-examination, could frame their questions by reading from medical authorities and ask the witness whether he agreed with the author, the court having cautioned the jury that what was read from the books was not evidence.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

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

A. L. Cooper and Karnes, New & Krauthoff, for appellant. John H. Lucas and Chas. A. Loomis, for appellee.

LAMM, P. J.

Defendant appeals from a judgment in plaintiff's favor for $5,000. She is the widow of John L. MacDonald, injured while a passenger on defendant's car on defendant's cable road, October 26, 1902, while running round a curve. In about eight months and a half afterwards he died. There is no question but that he was injured, and by defendant's negligence. Plaintiff's theory is that such injuries caused his death; defendant's is contra. The trial was long. The issues were threshed out below closely and with ability. The briefs take a wide range. The instructions were many. However laborious a task, we shall undertake to condense the voluminous record without omitting vital matter.

After allegations immaterial to any question made here, the petition alleges:

"That in rounding said curve the car aforesaid in which the said John L. MacDonald was riding came to a sudden and violent stop, which was caused either by the negligent and careless condition in which the appliances used by said defendant for going around said curve were allowed to remain, or by the negligent and careless manner in which the gripman discharged his duty in managing and controlling said car; but it was either one or the other, or both, as plaintiff believes and alleges, and she is ignorant whether it was the one or the other. By said sudden and violent stoppage of said car, said John L. MacDonald was thrown violently forward and down, by which he was greatly injured, and which injuries so received by him caused his death, which occurred on the 13th day of July, 1903."

The abstracted answer is a general denial. Plaintiff contends the trial answer had a plea of contributory negligence, but she files no counter or additional abstract. Not only so, but no issue of contributory negligence was submitted to the jury, and that feature, on any view of the case, is by-matter.

Save on the medical testimony, there is little or no dispute about the facts. The case made is this:

Judge MacDonald was between 65 and 66 years old when he died. He came to Kansas City from St. Paul, Minn. In St. Paul (as in Kansas City) his profession was that of a lawyer in full practice, though he had served in Congress and on the bench. The winter before moving from St. Paul, he was bothered with lumbago. Lumbago is an ailment of a rheumatic kind, indicated by pain in the small of the back. The occasion of his change from St. Paul to Kansas City was, primarily, to find a milder climate to rid himself of lumbago or prevent its becoming chronic, if lurking; secondly, to better his business outlook. With these ends in view, he visited the South, seeking a location in Louisiana, Texas, and Arkansas. About a year prior, he had gone to Hot Springs and spent a few days at the baths there. In his exploring trip South, he again visited Hot Springs and took a few baths. This was in 1897, and in the fall of that year he settled in Kansas City. From that time until his injury, five years later, he was apparently free from lumbago or any other rheumatic trouble. He is described in the record as leading an active life, as being "a rugged, strong man," an "industrious man," weighing about 180 pounds, about 5 feet 10 inches in height, "broad-shouldered," "muscular," of an "athletic type," temperate, with a good appetite but restraining it, "a vigorous, strong man," "a very temperate man," "a well man," positive, but of a jolly turn and a hard worker. This, up to the time of his injury.

On the 26th of October, 1902 (in prime health to all appearances), he, with his wife, Mary, was returning from church. Suddenly, while his car was going without check, at presumably ordinary speed, around a curve, the grip car in the train was thrown from the track, the "trailer" on which he was riding was partly derailed, its front end thrown from the track, and he was violently projected ahead two or three feet, sidewise, against the immovable framework of the car stove. The cause of all this is left quite dark. One witness, speaking of the suddenness and force of the stop, said it was the same as if the car "had struck a house"; another (after the accident) saw a broken rail. Judge MacDonald was on a seat running lengthwise of the car, with the stove on his side. He evidently was thrown against it with whatever force would be given him from the momentum of a car having the speed of that one; and the force is described by the inflamed but pardonable metaphor of one witness as the same as if he was "shot out of a cannon." Just what parts of his body struck the framework of the stove is not entirely clear. The visible sign of the blow was in the neighborhood of the left car and side of the face, and covered a place the size of your hand. Other parts of his left shoulder and chest, evidently affected by the blow, must be got at by his pains ensuing at once and those developing hard on his injuries. That he was badly hurt is put beyond all question. Being in a dazed condition, presently, on recovering, he complained of his shoulder, neck, and head. He was assisted out of the car and into a nearby drug store.

One witness, helping him from the car to the drug store, noticed he put his hand to the left side of his chest, and we may say, in passing, that this involuntary and significant motion of putting his hand to his chest was noticed by his friends as time went on. Failing to reach his family physician from that drug store, he was helped to another. There he communicated with him, and then was assisted home. The record shows him apparently unable to walk without assistance. For two or three weeks he was confined to his bed under...