Norris v. St. Louis, Iron Mountain and Southern Railway Company

• Decision Date: 06 February 1912
• Citation: 144 S.W. 783,239 Mo. 695
• Parties: MACY NORRIS v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Plaintiff in Error
• Court: Missouri Supreme Court

144 S.W. 783

239 Mo. 695

MACY NORRIS v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Plaintiff in Error

Supreme Court of Missouri, Second Division

February 6, 1912

Error to Jackson Circuit Court. -- Hon. Henry L. McCune, Judge.

Affirmed (conditionally).

Edw. J White for plaintiff in error; Elijah Robinson and Martin L Clardy of counsel.

(1) The court admitted incompetent and illegal evidence on the part of the plaintiff. (a) The evidence of the various non-expert witnesses, giving their opinion that the plaintiff appeared to be in perfect health; that "they had noticed her quit waiting on customers as though in terrible misery;" that they had noticed "frowns on her face as though she was suffering;" that she was in perfect health; for the reason that all these various statements of the non-expert witnesses were calculated to injure the defendant's cause before the jury. The witnesses were not qualified to give such opinions. Non-expert witnesses are only permitted to detail facts and not to give their opinions, such as the witnesses here were permitted to do, as to the condition of the plaintiff's health prior and subsequent to the alleged injury. Sharp v. Railroad, 114 Mo. 100. (b) The five photographs, identified only by the plaintiff as having been made by some man named Butcher, who lived in Colorado, and mailed to her by the person who took the photographs, without any other identification or proof of the correctness of such photographs. Photographs are never admissible in evidence until they are proven by testimony to be true photographic prints of the thing in question. Baustian v. Young, 152 Mo. 317; Goldsborough v Railroad, 60 N. J. L. 49; Beardslee v. Columbian Twp., 188 Pa. St. 496; Hupfer v. Distilling Co., 144 Wis. 279; Pessolano v. Pessolano, 34 Misc. 16; Trahen v. Hicks, 131 Mo. 180. (3) The court erred in giving instructions 1, 2, 3 and 4 on the part of the plaintiff. (a) The plaintiff's first instruction is defective in several particulars. In instructing the jury that the law presumed that the injury to the plaintiff was caused by defendant's negligence and that the fact of the injury and the derailment "make it a presumptive case for the plaintiff." Huff v. Cox, 2 Ala. 311; Saunders v. Railroad, 147 Mo. 424; Blair v. Railroad, 31 Mo.App. 231; Eldridge v. Railroad, 32 Minn. 253; 21 Am. & Eng. Ry. Cas. 496; Patterson, Ry. Acc. Law, p. 443; Bailey v. Railroad, 152 Mo. 461; Ham v. Barrett, 28 Mo. 388; McVey v. Railroad, 125 Mo.App. 569; Yarnell v. Railroad, 113 Mo. 579. The plaintiff's first instruction was also erroneous because after advising the jury that the plaintiff had established a "presumptive case" in proving her injury and derailment, the instruction made such presumptive case conclusive, unless the defendant had discharged its duties referred to in other instructions of the plaintiff. (b) The third instruction given at the instance of the plaintiff, predicated a right of recovery upon the defendant's failure to employ "careful employees," and placed the duty in employment of its employees as "a very high degree of care and caution," whereas the law only requires ordinary care and caution in the employment of its employees. This instruction was also erroneous in placing the burden of proof upon the defendant and compelling it to establish to the "satisfaction" of the jury, without any guide to the jury as to how or in what manner they should be "satisfied," thus permitting the jury to require a degree of proof that might convince them beyond the peradventure of a doubt and permitting them to enter the field of caprice and conjecture. Shinn v. Tucker, 37 Ark. 589, 11 Ency. Pl. & Pr., 183; Kirchner v. Collins, 152 Mo. 397; Suse v. Railroad, 80 N.Y.S. 513. (4) The court erred in failing to withdraw incompetent and prejudicial remarks of counsel during their argument to the jury. Williams v. Railroad, 123 Mo. 573; Harper v. Western Union, 92 Mo.App. 304; Estes v. Railroad, 111 Mo.App. 1; Lew v. Transit Co., 106 Mo.App. 335; Rice v. Solley, 176 Mo. 148; Winder v. House Furnishing Co., 165 Mo. 542. (5) The court erred in failing to set aside the verdict because it was excessive. The evidence, disclosed by the entire record, shows that the plaintiff's injuries were not connected with the derailment of the defendant's passenger train and aside from a few bruises on her person there was an entire absence of any connection between the only permanent injury shown, i. e., the slight displacement of her womb, with the derailment of the defendant's train. To permit a verdict in this amount to stand upon such flimsy evidence as the record in this case discloses, as said by this court in the Partello case, "would be so excessive and beyond reason, and so gross, as to warp the sense of justice. It could not be accounted for upon any theory, other than prejudice and passion." Partello v. Railroad, 217 Mo. 661.

Boyle & Howell for defendant in error.

(1) During the trial the case was dismissed as to the Missouri Pacific Company, but proceeded to a verdict against its codefendant. Motions for new trial and in arrest were filed heard and overruled, and an affidavit for appeal to the Supreme Court filed by the Missouri Pacific Railway Company and leave given to it to file a bill of exceptions on or before the 3d day of the October term, 1907. The Missouri Pacific Railway Company also gave bond for appeal at the time to the Supreme Court. This, then, was the status of the case at the time. In one and the same order and at the same time the Missouri Pacific Railway Company was allowed an appeal, and given time to file bill, and its appeal bond fixed at $ 20,000, which was duly filed and approved. The affidavit for appeal and the bond show that the appeal was taken by the Missouri Pacific Railway Company. The bill of exceptions shows that the appeal was taken by the "defendant." If "defendant" means this defendant, then there are two proceedings, one by appeal and the other by error, and proceeding by error can not be maintained while the appeal continues, and the writ should be refused unless the appeal has been dismissed. If the appeal was not taken by the plaintiff in error, then it was never allowed leave to file bill of exceptions and has no bill here. And the motion for entry nunc pro tunc was improvidently sustained. Harris v. Chitwood, 210 Mo. 560; St. Louis v. Butler, 201 Mo. 396; Turner v. Edmonston, 210 Mo. 419. If the appeal has not been dismissed, then this writ of error should be dismissed as it appears that the appeal was taken by the plaintiff in error herein. Vigo v. Bradford, 129 Mo.App. 656. (2) "A non-expert witness may give his opinion as to the apparent health of a person whom he has had opportunity to observe. Thus a non-expert witness 'may testify that a person appeared to be suffering, was weak and helpless, appeared sick, looked pale or paler than usual or was in declining health.'" Partello v. Railroad, 217 Mo. 655; State v. Buchler, 103 Mo. 207. (3) As to the photographs introduced in evidence showing the condition of the train and surroundings immediately after the wreck, the plaintiff testified that they were correct representations of the cars and surroundings which she saw at the time. She testified that she saw the photographer take them. Baustian v. Young, 152 Mo. 317; Kirkpatrick v. Railway Co., 211 Mo. 82. The authority is overwhelming that these photographs were admissible in evidence under the circumstances and the evidence of the case; but even if they were not, how could they have harmed the appellant? No photograph could have shown this wreck as bad as it was. The whole testimony of all the witnesses shows the complete wreck of the train; it would not have been possible for a photograph to exaggerate the situation as detailed by the testimony of the witnesses. (4) Appellant complains that the trial court erred in instructing the jury that "the law presumed that the injury to the plaintiff was caused by defendant's negligence." Instruction one objected to by appellant, after stating the preliminary facts and requiring the jury to find plaintiff a passenger, etc., contains this language: "Then the law presumes that such injury to plaintiff was caused by defendant's negligence and such facts if proven by a preponderance of the evidence make out a presumptive case for the plaintiff and you should find a verdict for the plaintiff," etc. Hipsley v. Railroad, 88 Mo. 352; O'Gara v. Transit Co., 204 Mo. 733. The accident was not the result of that want of care and vigilance which the law made it obligatory on the defendant to bestow. Price v. Railway Co., 220 Mo. 444. Defendant was required by the law to assume the burden of showing that it exercised the highest degree of care, and it must show that before it can avoid the "presumption that it was occasioned by some negligence of the defendant." Bailey v. Railroad, 152 Mo. 461, quoted by appellant, has no application to the case at bar and the use of the word presumption is not in all cases forbidden. Clark v. Railroad, 127 Mo. 207. (5) The damages were not excessive. The case of O'Gara v. Transit Company, 204 Mo. 743, is similar in facts and injuries to plaintiff's. Dr. W. Eugene King testified (among other things) "that the womb was tipped forward quite a great deal; tipped over and has adhered to the bladder and the other viscera about there; and that it was bent quite a little at the neck, 'which we call anteflexion.'" That these conditions cause the plaintiff to suffer a great deal from month to month at the regular menstrual flow and produce a great deal of nervousness and general ill health. They keep the patient in a state of nervous tension at the menstrual time, and they suffer a great deal during the menstrual period. At...