Partello v. Missouri Pac. Ry. Co.

• Decision Date: 09 February 1912
• Citation: 145 S.W. 55
• Parties: PARTELLO v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

145 S.W. 55

PARTELLO v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

February 9, 1912.

1. NEW TRIAL (§ 55)—MISCONDUCT OF JURY —TIMELY OBJECTION—NECESSITY — WAIVER OF IRREGULARITIES.

Where defendant, during the introduction of plaintiff's testimony, objected that two jurors had read articles relating to the case on trial which appeared in the daily papers, and, though moving to discharge the jury, did not then show that they had been influenced, defendant cannot on a motion for new trial show the improper influence, for a party cannot take the chance of a favorable verdict, and then claim the existence of prejudice which he did not show when he had the opportunity, and hence the propriety of the court's refusal to discharge the jury must be determined by the showing at the time of the motion.

2. JURY (§ 149*)—CONDUCT OF JURY—NEWSPAPER ARTICLES — DISCHARGE PENDING TRIAL.

Mere proof that in a personal injury action against a railroad company jurors read a newspaper account of the prior trial, which stated the amount of the verdict then given and that it was reversed, is not a sufficient showing to warrant the discharge of the jury.

3. APPEAL AND ERROR (§ 1099)—DETERMINATION —LAW OF CASE.

A judgment on a former appeal is the law of the case, and an instruction identical with one there approved is not subject to complaint.

4. CARRIERS (§ 316) — CARRIAGE OF PASSENGERS — INJURY TO PASSENGERS — PRESUMPTION.

Where the relation of carrier and passenger exists between a railroad company and one injured by an accident, proof of the accident raises a presumption of defendant's negligence, and hence an instruction that, if plaintiff and defendant occupied the relation of passenger and carrier, then the law presumes that the injury to plaintiff was caused by defendant's negligence, is correct.

5. TRIAL (§ 124*)—ARGUMENTS OF COUNSEL— STATEMENT AS TO FACTS.

In a personal injury action against a railroad company, where plaintiff claimed that the accident had rendered her a helpless invalid, and that she had remained so for more than five years, and defendants and their expert witnesses claimed that plaintiff was an imposter, and was deceiving the jury as to her injuries, statements by counsel made in a decorous argument that it was a serious charge to claim that plaintiff had been living the life of an imposter, and had more than once been guilty of perjury, was not misconduct, being based on facts in the record.

6. DAMAGES (§ 132*)—PERSONAL INJURIES— AMOUNT OF DAMAGES.

Where plaintiff while a passenger on defendant's train was injured by a collision, being thrown from her seat and rendered unconscious, and her injuries resulted in a long period of illness which left her a permanent nervous wreck, unable to endure the fatigue of ordinary exercise or to eat anything but a liquid diet, a verdict of $30,000 was excessive, and can be allowed to stand only upon plaintiff entering a remittitur of $20,000.

Brown, Kennish, and Woodson, JJ., dissenting in part.

In Banc.

Appeal from Circuit Court, Jackson County; W. A. Lowell, Judge.

Action by Annie V. Partello against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed upon condition that plaintiff enter a remittitur.

See, also, 217 Mo. 645, 117 S. W. 1138.

Elijah Robinson, for appellant. Reed, Yates, Mastin & Harvey, for respondent.

KENNISH, J., filed the following opinion in Division No. 2:

"This case is an appeal from a judgment of the circuit court of Jackson county. The respondent is the wife of Maj. Partello of the United States Army. On the 9th day of October, 1904, respondent, with her husband and children, was a passenger on appellant's train running from Kansas City, Mo., to Ft. Leavenworth, Kan. As the train was passing over the terminal tracks leaving Kansas City, the engine collided with an engine upon a switch track, moving in the opposite direction. The collision caused the train to stop suddenly, throwing the passengers violently forward. The respondent's head and body struck against the back of the seat immediately in front of her. The blow and shock rendered her unconscious, and she was removed on a stretcher, through a window of the car, and taken to the hospital for treatment. This suit was brought to recover damages in the sum of $50,000 for the injuries thus sustained. Upon a trial a jury returned a verdict for $30,000. The defendant filed a motion for a new trial, alleging, among other grounds, that the verdict was excessive. Before the court passed upon the motion, the respondent remitted $10,000 of the amount of the verdict thus secured. The motion was then overruled, and a judgment rendered for the plaintiff in the sum of $20,000. The defendant appealed to this court. On that appeal this court reversed and remanded the cause for a new trial on the ground that the verdict was excessive, notwithstanding the remittitur entered. The case was tried a second time, and a verdict returned for the same amount as on the first trial, to wit, $30,000. The defendant again appealed, and the case is now before us for decision upon appellant's second appeal.

"The decision of this court on the first appeal is reported in 217 Mo. 645, 117 S. W. 1138, and a detailed statement of the facts will there be found. As it is conceded on this appeal that the testimony on both trials was substantially the same, reference is now made to the opinion on the former appeal for a full statement of the facts, which need not be repeated. However, as it is earnestly contended by appellant that: `The record in the present case discloses no injury or damage to the plaintiff other than the bleeding at the nose and temporary shock occasioned by the collision and blow upon the nose, to which the collision of October 9, 1904, bears any necessary or causal connection whatsoever. The record is barren of credible or competent evidence either that there was any falling of the plaintiff's womb at or immediately following the time of the accident, or that the condition of the plaintiff's womb and ovary with which she suffered subsequent to 1904 was occasioned by or in any manner whatsoever connected with the collision of October 9, 1904'—the following facts as to plaintiff's injuries are taken from the case as reported in the former decision of this court:

"`Plaintiff was removed through the car window on a stretcher and taken to St. Joseph's Hospital; she being at the time in an unconscious condition. Describing her condition, after she regained consciousness, she said: "I felt as though I was hurt in some way in my lower parts, and could not move them." Dr. Fulton and Dr. Hamel, two surgeons connected with the defendant railway company, came to see plaintiff on the day of the injury and administered strychnine, and put her womb back in place, Dr. Fulton forcing it back in place with a pack. Miss Carrico, the nurse who waited on plaintiff at the hospital, testified that, when plaintiff came to the hospital, she was in great pain, and continually asked for something to relieve her. She saw Dr. Fulton examine plaintiff and force back her womb by means of a pack saturated with ichthyol oil. The doctors also applied antiphlogistine to the lower part of her abdomen, on the right side, which was greatly swollen, and this treatment was continued for weeks. During plaintiff's stay at the hospital she was unable to sleep without the aid of an opiate, and she suffered from nervousness and nausea. She failed in flesh, and during the first three weeks of her stay at the hospital she was out of bed once, when she was put in an invalid's chair, and taken to the porch for a few minutes. After plaintiff had been at the hospital some two or three weeks, Dr. Lester Hall, who had been asked by the plaintiff's husband to attend his wife, performed a minor operation on plaintiff. He found that in giving birth to her first child the perineum was lacerated, and he cut away the old scar tissue, and sewed up the lacerated perineum. At the end of five weeks plaintiff left the hospital and was taken in a carriage to the Coates House, in Kansas City, where she remained three days, and then took a night train for home, lying down in a sleeper as soon as she entered it. Reaching Ft. Reno, she was immediately put to bed, which she was unable to leave, even with the help of assistants, for two or three months afterwards, during which time a nurse constantly attended her. Dr. A. M. Chase, an army surgeon stationed at Ft. Reno, was called in immediately upon Mrs. Partello's arrival. He found her in a fainting condition, and gave her several hypodermic injections of strychnine, and did not leave her for hours. She was partially unconscious. Her extremities were cold and pulseless, and she was without rallying power. In appearance she was emaciated and sallow. A few days later Dr. Chase made a physical examination of plaintiff, and found the womb fixed and the patient suffering from great tenderness of the abdomen. The broad ligaments supporting the womb, and the surrounding tissue, he found inflamed and enlarged. There was also a swelling in the abdominal region which lasted for weeks. In his opinion this condition was due to an acute injury, a blow or concussion. He visited her three times a day for a period of about two months, and continued to visit her at intervals up to the time of testifying. He thought that the injury received by plaintiff had almost destroyed her nervous system, and that her health and vigor were permanently impaired. Dr. J. H. Ford, assistant surgeon at Ft. Reno, testified that plaintiff, before her injury, was remarkably strong and robust and in excellent health. She had been accustomed, as the wife of the commanding officer, to attending the balls and social functions at the fort, and taking a leading part therein, and she was also fond of doing her own housework, although it was not necessary for her to do so. She had not suffered from...