Mayes v. Metropolitan Street Railway Co.
| Decision Date | 05 November 1906 |
| Parties | SARAH MAYES, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Henry L. McCune, Judge.
AFFIRMED.
Verdict affirmed.
John H Lucas, Charles A. Loomis and S. C. Price for appellant.
(1) The questions propounded to plaintiff's witnesses by her attorneys as to the distance in which the car could have been stopped were not proper hypothetical questions, and the witnesses were not qualified to give expert testimony on that point. Mammerberg v. Railroad, 62 Mo.App. 567; Benjamin v. Railroad, 50 Mo.App. 602; Turner v Haar, 114 Mo. 345; Senn v. Railroad, 108 Mo 142. (2) The questions asked plaintiff's witnesses if the gripman could have seen whether the tracks were gummy or wet were improper questions because these are matters of common knowledge and not for opinion or expert evidence. Gregory v. Chambers, 78 Mo. 294; Hurt v. Railroad, 94 Mo. 255; Railroad v. Stockyards Co., 120 Mo. 541; Gavisk v. Railroad, 49 Mo. 274; Walton v. Railroad, 40 Mo.App. 544; Naughton v. Stagg, 4 Mo.App. 271; State v. Dusenberry, 112 Mo. 227; Wharton on Criminal Evidence (8 Ed.), sec. 405. (3) The questions propounded to plaintiff's medical expert witnesses by her attorneys were not proper hypothetical questions in that they did not fairly and properly assume and present to such witnesses the facts and all the facts shown in evidence, and which were necessary for an intelligent expert opinion, and because they called upon the witnesses to say whether the fall from the buggy produced the injuries plaintiff claimed she had sustained, which was the very issue which the jury alone was to determine. Taylor v. Railroad, 185 Mo. 239; Gutridge v. Railroad, 94 Mo. 472; Boettger v. Iron Co., 136 Mo. 536; Langston v. Railroad, 147 Mo. 465; Hartman v. Muehlbach, 64 Mo.App. 565. (4) The first instruction for plaintiff should not have been given because it ignores the defense of contributory negligence entirely, and authorized the jury to find for plaintiff no matter how negligent she may have been in putting herself in a place of danger and continuing therein, and notwithstanding such negligence on her part may have contributed directly to her injury; and for the further reason that it did not require the jury to find that the gripman knew, or should have known that plaintiff would not get out of the way of the car; and because it is contradictory of the second instruction given for defendant. Jones v. Talbot, 4 Mo. 279; Hickman v. Griffin, 6 Mo. 37; State v. McNally, 87 Mo. 644; Nasse v. Algermissen, 25 Mo.App. 186; Markowitz v. Kansas City, 125 Mo. 485; Flynn v. Bridge Co., 42 Mo.App. 529; Voegeli v. P.M. & G. Co., 49 Mo.App. 643; State v. Cable, 117 Mo. 380; State v. Brumley, 53 Mo.App. 126; Spillane v. Railroad, 111 Mo. 555; Zwisler v. Storts, 30 Mo.App. 164; State v. Herrell, 97 Mo. 105; Matthews v. Railroad, 63 Mo.App. 569; Goetz v. Railroad, 50 Mo. 474. (5) The third instruction given for plaintiff is erroneous and should not have been given: First, because it leaves the supposed future suffering of plaintiff from her alleged injuries too much to conjecture and speculation; and, second, because it refers the jury to the petition for the injuries for which they may give plaintiff damages. Grant v. Railroad, 25 Mo.App. 232; Remmler v. Shenuit, 15 Mo.App. 192; McGinniss v. Railroad, 21 Mo.App. 399; Proctor v. Loomis, 35 Mo.App. 482; Clark v. Loan Co., 46 Mo.App. 248; Railroad v. McGrew, 104 Mo. 282. (6) The third and fourth instructions asked on behalf of defendant should have been given. They would have presented the case to the jury, fairly and properly on the issue of contributory negligence, which issue was raised by the answer and supported by substantial evidence. Cornwell v. Transit Co., 106 Mo.App. 135; Minter v. Bradstreet Co., 174 Mo. 444. (7) Defendant's demurrer to the evidence should have been sustained. Gurley v. Railroad, 93 Mo. 490; Waldhier v. Railroad, 71 Mo. 514; Bohn v. Railroad, 106 Mo. 433; Hite v. Railroad, 130 Mo. 132; Chitty v. Railroad, 148 Mo. 74; Raming v. Railroad, 157 Mo. 477; Boring v. Railroad, ___ Mo. ___; Van Bach v. Railroad, 171 Mo. 338; Boyd v. Wabash, 105 Mo. 37; Wheat v. St. Louis, 179 Mo. 580; Guyer v. Railroad, 174 Mo. 344; Moore v. Railroad, 176 Mo. 536; Roenfeldt v. Railroad, 180 Mo. 554; Reno v. Railroad, 18 Mo. 469; Ries v. Transit Co., 179 Mo. 1.
Reed, Yates, Mastin & Howell for respondent.
(1) It is held by all of the authorities that the finding of the trial court as to who is competent to give expert testimony is a matter resting within the sound discretion of the judge, and is conclusive upon the appellate court, except where his ruling is founded upon clear error of fact or law. Fullerton v. Fordyce, 144 Mo. 519; Bradford v. M., K. & T. Co., 64 Mo.App. 475. (2) The questions propounded, of which complaint is made, were proper questions, and even had they been improper, the error in permitting them to be answered, could in no wise have resulted to appellant's prejudice; respondent had the right to assume that the track was dry since this is its normal condition, and there was no other testimony at that time in the case tending to show that it was not in its normal condition. (3) The hypothetical questions propounded to medical experts by respondent's counsel were proper. Redmon v. Railroad, 185 Mo. 14; Wood v. Railroad, 181 Mo. 453; Franklin v. Railroad, 87 S.W. 930; Glasgow v. Metropolitan Company, 89 S.W. 920; Holloway v. Kansas City, 184 Mo. 39; O'Neill v. Kansas City, 178 Mo. 100. (4) Plaintiff's instruction numbered 1 is absolutely correct; it is in accord with the repeated rulings of our Supreme Court. The instruction presents the last chance or humanitarian doctrine applicable to cases of this character. Klockenbrink v. Railroad, 172 Mo. 689; Kellney v. Railroad, 101 Mo. 67; Morgan v. Railroad, 159 Mo. 262.
--This is an action for damages for personal injuries. The plaintiff's evidence tends to show that, on March 29, 1900, she drove a buggy in which she was seated with the top and side curtains up and the back curtains down, from Eleventh street west to Walnut street, crossed over the defendant's tracks to the south side and continued on south until she was opposite Wolferman's grocery store near the middle of the block, at which point her buggy was struck by one of defendant's cars operated by a cable, which threw her out upon the street whereby she was injured. This evidence tends to show that the space between the west rail of defendant's track and the curbing on the west was filled with vehicles of various kinds, so that in passing along she was compelled to keep so close to the defendant's track that there was not space enough for the car to pass her buggy without striking the wheels; that when she got opposite said store of Wolferman's in order to pass by it she had to get still closer, if not partially on said track; that she was travelling in a slow trot and the car was travelling at a speed of from three to four miles an hour, but faster than the speed of the buggy; that about the time she started south on Walnut street she saw a car pass coming from the north; that she saw no other coming from that direction, and she did not look again; that she did not hear the ringing of the gripman's bell for her to get out of the way of the approaching car until just before the collision; that the gripman saw her for a distance of sixty feet or more while her buggy was so near the track that the car could not pass without striking it; that the gripman had perfect control of the car and could have stopped it at any time within from nine to twelve feet; and that she was severely injured as the result of being thrown from her buggy.
The defendant's evidence was to the effect that, while plaintiff was driving south on Walnut street there was sufficient room for the car to pass her, until she turned to pass the wagon at Wolferman's store, when she suddenly turned upon the track and was struck by the car, before the gripman had time to prevent doing so with the greatest effort on his part; that he gave the usual warning in such cases by ringing his bell; that he had perfect control of his car and could and did stop it in from nine to twelve feet. The verdict and judgment was for plaintiff for $ 2,000 from which defendant appealed.
The defendant demurred to plaintiff's case which was overruled by the court, which action of the court is assigned as error. The statement of the case we think shows that plaintiff was entitled to recover as she introduced evidence that tended to support the allegations of negligence set out in her petition. One of the grounds of negligence is that defendant negligently ran its car against her buggy when by the exercise of ordinary care, it could have avoided doing so. It is agreed that the defendant's gripman saw plaintiff while she was driving south along the side and close to defendant's track. And there was evidence, as has been stated, that her buggy was so close to the track that the car could not pass without striking it; that it was apparent that on account of the numerous vehicles on the street that she could not get out of the way of the car; that the gripman could and should have seen and known that the buggy would have to get onto the track in order to get by the wagon in front of Wolferman's store; and that the gripman could have stopped the car in a few feet as it was going but a little faster than the buggy.
It seems to us that the facts support the allegation of negligence on the part of defendant. And not only that, it tends to show also that plaintiff was not negligent on her part. She had the right...
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