McMahon v. United Rys. Co. of St. Louis

• Citation: 203 S.W. 500
• Decision Date: 07 May 1918
• Docket Number: No. 15036.,15036.
• Parties: McMAHON v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Court of Appeal of Missouri (US)

203 S.W. 500

McMAHON v. UNITED RYS. CO. OF ST. LOUIS.

No. 15036.

St. Louis Court of Appeals. Missouri.

May 7, 1918.

Appeal from St. Louis Circuit Court, J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Sarah McMahon against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Priest and Geo. T. Priest, all of St. Louis, for appellant. Fauntleroy, Cullen & Hay, of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries alleged to have been sustained by plaintiff by reason of the negligence of defendant's servants in suddenly starting forward one of defendant's street cars while plaintiff was in the act of boarding it. The defense asserted below proceeded upon the theory that plaintiff was injured as the result of an attempt on her part to board a moving car. It appears that two jury trials of the cause have been had, a prior verdict for plaintiff having been set aside by the court. The last trial, on March 8, 1915, resulted in a verdict and judgment for plaintiff in the sum of $6,000, from which defendant prosecutes the appeal before us.

At the time of her injury, which occurred on June 2, 1913, plaintiff was 52 years of age, and according to her evidence she was a healthy, robust woman, and had enjoyed excellent health all of her life. The immediate injuries were to her head, back, neck, and arm. It appears that she was confined to her bed for 5 weeks, and for nearly 3 months was unable to leave her room. The evidence in her behalf tends to show that as a result of her injuries she became and remained in a highly nervous condition, subject to severe headaches, severe nervous chills, insomnia, and constipation, and that she had lost much weight; and the testimony of her physician tends to show that her health has been permanently impaired as a result of such injuries. Prior to receiving her injuries, plaintiff was a seamstress, earning her own livelihood, and was engaged in this occupation on the very day upon which she was injured and according to her testimony she has since been unable to "do sewing or anything." Defendant adduced testimony of medical experts tending to show that plaintiff's nervous condition, and the attendant ailments of which she complains, were not of traumatic origin, but were due wholly or in large part to the menopause.

I. The first point made in the brief of appellant's learned counsel is that:

"The court erred in admitting, over defendant's objections thereto, the evidence of Dr. Kane, narrating the past history of the case as given him by plaintiff, and the ailments she told him she had suffered prior to that time, for the reason that such evidence was hearsay and a narration of self-serving statements."

In support of this assignment appellant cites Poumeroule v. Cable Co., 167 Mo. App. 533, loc. cit. 539, and cases there cited, 152 S. W. 114; Freeman v. Insurance Co., 196 Mo. App. 383, 195 S. W. 545, loc. cit. 548. Appellant concedes that it was competent for plaintiff's physician to testify regarding complaints or statements made to him by plaintiff as to her symptoms present at the time when he was engaged in treating her, but urges that it was error to allow the physician to narrate what plaintiff told him regarding her past sufferings and the history of her case generally. This is in keeping with the established rule of law on the subject. See Poumeroule v. Cable Co., supra, 167 Mo. App. loc. cit. 539. It remains to be seen whether there was a violation of this rule below, in the admission of testimony of plaintiff's physician, and, if so, whether appellant is in a position to now complain of its admission as constituting reversible error.

Dr. Kane first examined plaintiff, for the purpose of treating her, about 11 months after the "accident." The only testimony given by him as plaintiff's witness which can be said to have been violative of the rule stated above was given in answer to the following question, viz.: "At that time she gave you the statement about her symptoms?" This question was objected to by appellant's counsel "on the ground of hearsay," and the court overruled the objection. This ruling was entirely proper, for under the rule adverted to above the question was unobjectionable in form. In answer thereto the witness stated:

"She complained about being very dizzy, particularly on moving about. She complained that she was unable to fix her attention on anything for any length of time, and was therefore unable to make a living, unable to do her work. She complained severely of headaches, and said all her hair had fallen out; that her hair had fallen out, and she had had very severe headaches. Then I elicited from evidence that she was going through the menopause; getting the time of the dates when she had menstruated. She was normal from the time she was 16 up until 1913. After that time she menstruated in October, 1913, and then the signs appeared in February, 1914. In other words, twice from June, 1913, up until the time I got the history; also that she was unable to sleep—she did not sleep at night. She said she dreamt of terrible things happening to her, and would wake up with a start; also that for a year or more previous her bowels had been very badly constipated. I think that covers it."

An examination of this answer discloses that a considerable portion thereof is...