Norris v. St. Louis, I. M. & S. Ry. Co.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Brown
• Citation: 144 S.W. 783,239 Mo. 695
• Decision Date: 19 December 1911
• Parties: NORRIS v. ST. LOUIS, I. M. & S. RY. CO.

144 S.W. 783 239 Mo. 695 NORRIS
v.
ST. LOUIS, I. M. & S. RY. CO. Supreme Court of Missouri, Division No. 2. December 19, 1911. Rehearing Denied February 6, 1912.

1. APPEAL AND ERROR (§ 11)—RIGHT TO APPEAL—PENDENCY OF APPEAL BY ANOTHER DEFENDANT.

While the same defendant cannot bring a cause up for review both by appeal and writ of error, where an appeal has been improvidently granted to one of two defendants, as to whom the cause had already been dismissed, it will not preclude the other defendant from suing out a writ of error.

2. EXCEPTIONS, BILL OF (§ 40)—TIME FOR FILING—GRANTING EXTENSION—NUNC PRO TUNC ENTRY.

Where an order extending the time for settling and filing a bill of exceptions was granted to only one of two defendants, as to whom the case was dismissed, a nunc pro tunc entry extending the original order to the other defendant was proper, where the record entries show the dismissal and that this was the only cause pending in the particular court in which the plaintiff was a party, as it is apparent that the trial court would not have intentionally granted the dismissed party an appeal or time within which to file exceptions.

3. APPEAL AND ERROR (§ 302)—RESERVATION AND PRESENTATION OF GROUNDS—MOTION FOR NEW TRIAL—SUFFICIENCY.

Where objections are made and exceptions saved to the action of the trial court in ruling on evidence, a general assignment of errors in a motion for a new trial shown in the bill of exceptions is sufficient to preserve such matters for review.

4. EVIDENCE (§ 477)—OPINION—NONEXPERT WITNESSES—HEALTH OF PARTY.

While the opinions of nonexpert witnesses are not admissible to show the general health of a plaintiff in an action for injuries received in a railway accident, their testimony as to her appearance before and after the accident was properly permitted; the fact that the witnesses were not experts going only to the probative force of the testimony.

5. APPEAL AND ERROR (§ 1050)—HARMLESS ERROR.

While, in an action for injuries to a passenger in a railway accident, photographs of the engine and some of the cars made immediately after the wreck were introduced in evidence, with only the supporting testimony of the plaintiff who did not take them, their introduction will not be reversible error where they did not purport to be photographs of the car in which the plaintiff was riding when injured, and there is no material difference between the testimony of the plaintiff and defendant as to the condition of the cars and engine after the wreck.

6. EVIDENCE (§ 147)—NEGATIVE TESTIMONY.

In an action for injuries to a passenger in a wreck, evidence of the defendant's engineer and of physicians sent by it to the wreck, to the effect that they went among the passengers, and were unable, upon diligent inquiry, to find any one who complained of having been injured, is admissible to disprove the injury to the plaintiff.

7. APPEAL AND ERROR (§ 1058)—HARMLESS ERROR—ADMISSION OF EVIDENCE.

Possible error in sustaining an objection to testimony of a medical witness as to the condition of the plaintiff, in an action for injuries received in a railway accident, was rendered harmless by permitting the witness to later make a full explanation of his knowledge of the plaintiff's condition, and to criticise and discredit the evidence of plaintiff's physicians, and the methods they adopted in ascertaining the nature and extent of the injuries.

8. CARRIERS (§ 316)—INJURIES TO PASSENGER—PRESUMPTIONS OF NEGLIGENCE.

In an action against a railway company for injuries to a passenger received in a derailment of the train, a showing that the passenger was so injured raises a presumption that the derailment and consequent injuries were the result of negligence, and the defendant must rebut by showing that the accident was inevitable or not to have been averted by the exercise of a high degree of caution.

9. CARRIERS (§ 280)—INJURIES TO PASSENGER—DUTY.

A common carrier of passengers is bound to provide a reasonably safe track and roadbed, to operate its trains with careful employés, and to exercise a high degree of care to avoid wrecks and consequent injuries to passengers.

10. APPEAL AND ERROR (§ 216)—TRIAL (§ 237)—OBJECTION BELOW — SUFFICIENCY— INJURIES TO PASSENGER—INSTRUCTIONS.

An instruction, in an action for injuries to a passenger, which required the defendant to rebut plaintiff's prima facie case to their "satisfaction," does not require them to find lack of negligence beyond a reasonable doubt, but is merely indefinite, so as to be a mere non-direction, and in the absence of a request for a more specific instruction it will not be ground for reversal.

11. EVIDENCE (§ 265) — ADMISSIONS—CONCLUSIVENESS.

While plaintiff's admissions against her interest, made when on the stand, are presumed to be true, they are not conclusively so.

[144 S.W. 784]

12. APPEAL AND ERROR (§§ 207, 261)—RESERVATION OF GROUNDS — IMPROPER ARGUMENT.

The regulation of the argument of counsel is within the discretion of the trial court, and, except in extreme cases, mere objection and exception to remarks is not sufficient to preserve them for review, the proper practice being by request for and exception to a failure to rebuke, so that where, in an action for injuries received in a railroad wreck, remarks of counsel only reflected upon the relative wealth of the parties, a reversal will not be granted on objections and exceptions alone.

13. TRIAL (§ 119)—REMARKS OF COUNSEL— SUPPORT IN EVIDENCE.

Remarks of counsel, in an action for injuries to a passenger in a railroad wreck, to the effect that her father's death had left her to make her way in the world alone, were not improper, where the defendant had brought out testimony as to the father's death by consumption, to show a probable cause for the decline of the plaintiff's health.

14. TRIAL (§ 125)—ARGUMENT OF COUNSEL— IMPROPER ARGUMENT.

A trial court should not permit argument which amounts to an appeal to the jury to give judgment for one party on account of his poverty or the wealth of the opposite party, and should promptly rebuke counsel who indulge in such argument.

15. APPEAL AND ERROR (§ 1001)—FINDINGS OF FACT.

Where, in an action for injuries received by a passenger in a railroad wreck, the cause of the plaintiff was supported by substantial evidence, the court will not reverse on that ground.

16. DAMAGES (§ 130)—EXCESSIVE.

Where a plaintiff, in an action for injuries received in a railroad wreck, was in excellent health, prior to, and at the time thereof, and able to perform her duties as sales lady, and her injuries were painful and necessitate a surgical operation, but were not shown to be necessarily permanent, a verdict of $10,000 was excessive and should be reduced to $7,500.

Error to Circuit Court, Jackson County; Henry L. McCune, Judge.

Action by Macy Norris against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant brings error. Affirmed conditionally on remission of part of recovery.

Action for damages for alleged injuries sustained by plaintiff through the derailment of one of defendant's trains upon which she was a passenger. Plaintiff had judgment below for $10,000, and the defendant brings the case here by writ of error.

This suit was originally instituted in the circuit court of Jackson county, Mo., on July 10, 1905, at which time the plaintiff in her petition did not allege any injury to her womb; but the first suit was dismissed, and in the present action, which was instituted on September 18, 1905, she alleges: That "she was bruised and injured about her back and spine and over the region of her kidneys and in the kidneys. Her left hip was severely bruised and wrenched, left leg was severely wrenched and bruised in and near the knee. Her left shoulder was bruised and contused. Her right leg was severely wrenched, bruised, and contused. Her uterus was misplaced and anteverted, thereby causing inflammation of the pelvic parts and adhesions of the uterus to the pelvic walls, on account of which plaintiff has since suffered almost constant pains in her pelvic regions and in her head and back. That by reason of such injuries, her nervous system was severely shocked and impaired, and that said injuries are permanent and lasting in their character and effect."

Plaintiff testified that on June 9, 1905, she was a passenger on defendant's train between Texarkana and Hope, Ark., a distance of 35 miles. A few miles from Texarkana, said train was derailed and wrecked; some of the front cars leaving the track and sliding or rolling down an embankment. The front end of the chair car, on which plaintiff was riding, jumped off the track, sliding partly down an embankment; the rear end thereof remaining attached to dining car on the track. When the wreck occurred, plaintiff tried to arise in her chair, and by the sudden movement of the car was thrown violently against the arm of her chair and down into the aisle of the car, where she was trodden upon by persons who were scrambling to get out of the car. In being thus thrown down and trodden upon, she received severe bruises upon her left hip, abdomen, back, shoulder, and legs, causing a displacement of her womb, and resulting in permanent injury to her health. After the alleged injury, plaintiff went on to Hope, Ark., where she spent the night and the following day with friends. She then returned to Texarkana, where she remained one night, going thence by train to Kansas City, where some of her relatives and friends resided, and where she applied for and received the first medical aid for her injuries.

The physician who treated plaintiff at Kansas City testified that there were many bruises upon her body and limbs, and that she was in a very nervous condition bordering on collapse when she came into his office.

[144 S.W. 785]

He gave her internal treatment for her nervous condition and a local application for her bruises,...