Mayne v. Kansas City Railways Co.
| Decision Date | 07 April 1921 |
| Citation | 229 S.W. 386,287 Mo. 235 |
| Parties | EMMA E. MAYNE v. KANSAS CITY RAILWAYS COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Willard P. Hall, Judge.
Affirmed.
L. T Dryden for appellant.
(1) The court erred in admitting evidence to the effect that one of the results to the respondent from the injuries alleged to have been received by her, was a lack of the regular courses of nature in her female organs. Hall v. Coal Co., 260 Mo. 351; Johnson v. Railroad, 192 Mo.App. 8; Shafer v. Harvey and Dunham, 192 Mo.App. 502; Martin v. Kansas City Rys. Co., 204 S.W. 589; Wesner v. Railroad, 177 Mo.App. 117; Glasgow v Railroad, 191 Mo. 347; Smart v. Kansas City, 208 Mo. 162; Taylor v. Railroad, 185 Mo. 239; Baldwin v. Kansas City Rys. Co., 218 S.W. 955. (2) The court erred in admitting evidence as to the probable ability of the respondent to give birth to a child. Authorities cited above; Western Union Tel. Co. v Cooper, 10 Am. St. 772; Pittsburgh Railroad Co. v. Story, 63 Ill.App. 239; Atchison Railroad Co. v. Chance, 57 Kan. 40; Railroad Co. v. Douglass, 69 Tex. 694; Augusta Railroad Co. v. Randall, 85 Ga. 297. (3) This case should be reversed because of highly improper argument of respondent's counsel in his closing argument to the jury, to which timely objections were made and exceptions saved. Western Union Tel. Co. v. Cooper, 10 Am. St. 772; Pittsburgh Railroad Co. v. Story, 63 Ill.App. 239; Atchison Railroad Co. v. Chance, 57 Kan. 40; Railroad Co. v. Douglass, 69 Tex. 694; Augusta Railroad Co. v. Randall, 85 Ga. 297. (4) The court erred in admitting, over the strenuous objection of the appellant, the respondent to offer in evidence the deposition of Hugh Miller. Heinbach v. Heinbach, 262 Mo. 69; O'Brien v. Transit Co., 212 Mo. 59; State v. Miller, 263 Mo. 326; Dubowsky v. Binggeli, 184 Mo.App. 364; Schmitz v. St. Louis, I. M. & S. Ry. Co., 46 Mo.App. 380. (5) The court erred in giving Instruction P-1. Pointer v. Mountain Ry. Const. Co., 269 Mo. 104; Nolan v. Met. St. Ry. Co., 250 Mo. 602; Nellis on St. Railways, secs. 258, 259. (6) The verdict in this case is grossly excessive and so much so as to require a reversal. Henson v. Kansas City, 210 S.W. 13; 6 Thompson on Negligence, sec. 7355.
E. C. Hamilton for respondent.
(1) Appellant cannot be heard to complain of testimony showing impairment of the functions of childbearing or of a lack of the regular course of nature in her female organs. (a) Because the petition alleges injury to the female organs and resulting impairment of function. Perrigo v. St. Louis, 185 Mo. 289; Brake v. Kansas City, 100 Mo.App. 616; McRay v. Met. St. Ry. Co., 125 Mo.App. 570; Patridge v. Boston Ry Co., 184 F. 211; Doster v. Ry. Co., 158 S.W. 441. (b) Because the evidence conclusively shows, and because it is a matter of common knowledge, that the chief functions of the organs within the pelvis injured and impaired in this case are essentially those of procreation with the accompanying process of menstruation. (c) Because appellant failed to avail itself in the trial court of the provision of Sec. 1846, R. S. 1909, which prescribes the way, and the only way of preserving for appellate review the complaint of a variance between the pleading and the proof, namely, the filing of an affidavit of surprise. Sec. 1846, R. S. 1909; Mellor v. Mo. Pac. Ry. Co., 105 Mo. 470; Fisher v. Real Estate Co., 159 Mo. 567; Olive Street Bank v. Phillips, 179 Mo.App. 488; Cossitt v. Railroad Co., 224 Mo. 110; Thornton v. Am. Zinc Co., 178 Mo.App. 42, 46; McPike v. Motor Car Co., 213 S.W. 908; Ridenhaur v. K. C. Cable Ry. Co., 102 Mo. 285; Wright v. K. C. Terminal Railroad Co., 195 Mo.App. 486. (2) Appellant cannot be heard to complain of misconduct of counsel in the argument of the case for the reasons: (a) Defendant brings up only a fragment of the argument complained of, thus failing to show the sequence, the connection and the effect of the argument as a whole. Lilly v. K. C. Rys. Co., 209 S.W. 972; Norris v. Railroad, 239 Mo. 721; Wendler v. Furnishing Co., 165 Mo. 542. (b) For the reason that error will not be presumed from an unfinished interrupted remark in argument. Wagner v. Const. Co., 220 S.W. 899; Baird v. Larrabee Flour Mills, 220 S.W. 992. (c) For the reason that the defendant's motion for a new trial failed to specifically point out to the trial court the language of the argument complained of in order that the court nisi might have corrected the error, if such there were, before appeal. Sweet v. Maupen, 65 Mo. 68; Zahn v. Royal Fraternal Union, 154 Mo.App. 83; Lynch v. C. & A. Railroad, 208 Mo. 42; Honeycutt v. St. Louis Ry., 40 Mo.App. 678; Stone v. Wolfskill Bros., 59 Mo.App. 433. (d) For the reason that mere objections to argument are insufficient unless accompanied by request for the court to rebuke counsel. State v. Phillips, 233 Mo. 307; Norris v. Railroad, 239 Mo. 720; Wagner v. Const. Co., 220 S.W. 899. (3) Appellant having failed to avail itself of an opportunity to cross examine witness Miller after the reading of his deposition, cannot be heard to complain of the deposition's admissibility in evidence, especially when the evidence disclosed by it was only cumulative in nature. O'Keife v. Railway Co., 124 Mo.App. 623; McFarlan v. Accident Assn. Co., 124 Mo. 222; Benjamin v. St. Ry. Co., 133 Mo. 287. (4) In view of the doctrine of res ipsa loquitur there was no error in the giving of plaintiff's Instruction P.-1. Thompson v. Railroad, 243 Mo. 353; Burns v. Railroad, 176 Mo.App. 338. (5) The verdict is in no sense excessive, considering the horrible nature and permanency of plaintiff's injuries especially in view of the increased cost of living and the decreased purchasing power of money at the time the verdict was rendered. Greenwell v. C. M. & St. P. Ry. Co., 224 S.W. 410; Wagner v. Const. Co., 220 S.W. 899; Myers v. City of Independence, 189 S.W. 816; Barry v. Cape Girardeau, 132 Mo.App. 189; Stottler v. Railroad, 200 Mo. 148; Roe v. Met. St. Ry. Co., 131 Mo.App. 134.
WHITE, C. Railey and Mozley, CC., concur.
The appeal is from a judgment for $ 20,000 recovered by the plaintiff as damages on account of personal injuries.
Lexington Street, Independence, runs east and west. It is intersected by Orange Street running north and south. The defendant's street railway tracks run along Lexington Street; a track comes in from the north on Orange Street, and turns into a track on Lexington Street. After turning from Orange into Lexigton Street, a car stands to receive passengers in front of the post office, which is on the north side of Lexington Street.
On December 24, 1917, a car of the defendant came from the north on Orange Street and turned the curve into Lexington Street, heading towards the west. A number of persons, including the plaintiff and her sister, were waiting at that point in front of the post office to take passage on a car going west. Some of those persons immediately boarded the car. It was then announced by the conductor in charge that the car would not go on west. Such passengers as had boarded the car got off. The switch connecting the track coming in from Orange Street with the Lexington Street track was thrown, and the motorman attempted to back the car eastward on the track on Lexington Street. The rear trucks of the car passed on east, but the switch then became "split," as it was termed, so that the front trucks of the car, instead of going east, turned northward as if to pass on to the track on Orange Street. That caused the front end of the car to swing around in a sweep toward the curb on the north side of Lexington Street and against the crowd of persons waiting to take passage. The end of the car, swung so far, the evidence shows, that it struck an iron post which stood between the curb and the sidewalk at the northwest corner of Lexington and Orange. It struck a number of persons, knocking several down, and three women at least had to be picked up by other persons. The plaintiff's sister was dragged from under the car when it stopped; the plaintiff was struck and crushed over against the iron post mentioned, or against the curb. According to the evidence, when the car stopped the fender either was against the post, or very close to it. The fender was injured and had to be removed. Whether its removal was made for the purpose of getting the persons from under it, or whether the car could not proceed with it in that condition, does not appear from the evidence.
The number of persons at the point waiting to board the car was variously estimated at from a dozen to thirty. A number of them testified, and all substantially to the same effect, as to the movement of the car in taking the split switch, the swinging around of the front, and the crashing into the throng of people. Among the witnesses was the motorman in charge of the car, whose testimony was offered by the plaintiff. The defendant offered evidence to show that the wheels of the car and other parts were in good condition. The evidence tended to show that the split switch might have been caused by various means, by a defective wheel, broken flange, obstruction in the track, or too rapid backing of the car.
The injuries of the plaintiff were of the most serious character. Her hip was torn from the socket; the bones in the region of the hip were fractured in five or six places. The technical names of those various bones were given and the condition explained by surgeons who attended the patient and took X-Ray pictures of them. The bones were thrust out of place and grew together again in a misplaced condition, so that the result was an abnormal contraction of the pelvic cavity and the birth canal. It was testified that it would afterwards be...
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