McHatton v. Kansas City Rys. Co.

• Citation: 246 S.W. 651
• Decision Date: 08 January 1923
• Docket Number: No. 14408.,14408.
• Parties: McHATTON v. KANSAS CITY RYS. CO.
• Court: Court of Appeal of Missouri (US)

246 S.W. 651

McHATTON v. KANSAS CITY RYS. CO.

No. 14408.

Kansas City Court of Appeals. Missouri.

January 8, 1923.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

"Not to be officially reported."

Action by C. L. McHatton against the Kansas City Railways Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Chas. N. Sadler and Mont T. Prewitt, both of Kansas City, for appellant.

McCanles, Kennard & Trusty of Kansas City, for respondent.

ARNOLD, J.

This is a suit in damages for personal injuries.

The injury occurred on November 14, 1918, on Main street between Twentieth and Twenty-First streets in Kansas City, Mo. Plaintiff was driving an ice wagon, drawn by horses, along the west track of defendant's double street car track at said point, and was seated on the right side of the driver's seat with a helper on his left. Some construction work was being done at the point where the accident occurred, and material was piled in the street for a distance of about 100 feet, leaving a space about 6 feet in width between the track and the material. When the wagon which was proceeding southward reached the north end of said material, plaintiff pulled his team over to the east, so that his left wheels were traveling between the rails of the west track. He was proceeding southward in that position when one of defendant's street cars, coming from behind the loaded ice wagon, struck the wagon, knocking plaintiff from his seat onto the pavement in a southwesterly direction. Plaintiff hit the pavement with his right arm and elbow and both knees, causing the injuries of which he complains.

The petition charges general negligence of defendant and also pleads the humanitarian or last chance doctrine. The amended answer consists of a general denial and plea of contributory negligence. The cause was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $5,000. Motions for new trial and in arrest were duly filed by defendant. Plaintiff offered a remittitur of $2,500, whereupon the court set aside the verdict for $5,000, entered judgment for $2,500, and overruled the motions for new trial and in arrest. The cause is here by appeal of defendant.

The first assignment of error is based upon the action of the court in refusing to discharge the jury for alleged improper, unwarranted, and prejudicial argument by plaintiff's counsel. This objection is based upon the following incident of record:

Mr. McCanles (plaintiff's counsel): "If the court please, gentlemen, many years ago there was a man with a withered hand, and a voice said unto the man, `Stretch forth thy hand,' and he stretched it forth, and it was made whole like unto the other.

"Gentlemen of the jury, I would to God that this morning, instead of giving McHatton $10,-000, for which he is asking in this case, you could say unto him: `Mack, stretch forth thy hand, and we will make it whole for you, like unto the other.' But you can't do that, men. Mr. McHatton has got a withered hand—

"Mr. Prewitt (interrupting): We object to that, your honor. There is no such testimony in this record. There is absolutely no evidence of any `withered hand' in this record. We object to that as a statement outside the record, and it is improper, and we ask to have the jury so instructed, and counsel reprimanded for making such an argument.

"Mr. McCanles: The jury saw his hand here, your honor, and they shall be the judges of whether or not it was withered.

"Mr. Prewitt: I would like to have a ruling on that, if the court please?

"The Court: The objection is sustained, and the jury is instructed to disregard the statement of counsel as to the withered hand, and counsel is asked not to repeat the statement. The jury heard the testimony in regard to the injury to the hand.

"Mr. Prewitt: I ask to have counsel reprimanded for making such an improper and prejudicial argument in the presence of the jury.

"Mr. McCanles: This is a case where the jury saw this arm.

"Mr. Prewitt: You know what the testimony was in this case.

"Mr. McCanles: You bet I do. This was something they saw.

"The Court: I sustained the objection, Mr. Prewitt, and asked the counsel to refrain from any statement about the withered hand.

"(Whereupon the following proceedings were had out of the hearing of the jury):

"Mr. Prewitt: Now, we ask to have the jury discharged for having heard the improper and prejudicial remark about the `withered hand,' as made by counsel, in their hearing.

"The Court: That motion will be denied."

It is urged by defendant that these statements of counsel were inflammatory and prejudicial, the purpose of them being to arouse a feeling of bias and prejudice in the minds of the jury against defendant, and that there was no testimony introduced to the effect that plaintiff has a withered hand.

Plaintiff urges, in reply to this charge, that the word "withered" was properly used, and in support of his position refers to Webster's Dictionary. There we find three definitions of the verb "to wither," viz.: (1) To dry or shrivel up; to become sapless; to lose freshness, to fade. (2) To lose or want animal moisture; to dry up and waste away, as animal bodies. And (3) to lose vigor, power, force, or the like; to languish.

There is substantial testimony of record to the effect that plaintiff's arm, as a result of the injury, was somewhat shorter than its fellow, and that it lacked 15 per cent. of normal extension. The arm was exhibited to the jury. Tinder the third definition given by Webster, we are unable to say that counsel was not justified in making the statement to which defendant objects. Assuming, however, that he was not so justified, the trial court corrected the error by directing the jury to...