Partello v. Missouri Pacific Railway Company
| Decision Date | 30 March 1909 |
| Citation | 117 S.W. 1138,217 Mo. 645 |
| Parties | ANNIE V. PARTELLO v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Edw. P. Gates, Judge.
Reversed and remanded.
Martin L. Clardy and Elijah Robinson for appellant.
(1) The court committed error in permitting the plaintiff to read depositions of non-expert witnesses, in which they expressed opinions as to her physical condition. Sharp v Railroad, 114 Mo. 94; Railroad v. Demsey, 89 S.W. 786. (2) The court committed error in giving plaintiff's instruction 5, on the measure of damages. 1. Said instruction amounted practically to a statement to the jury that, in the opinion of the court, the evidence warranted them in returning a verdict for any sum up to $ 50,000. Bryan v. Acee, 27 Ga. 87; Glasscock v Shell, 57 Tex. 224; Willis & Bro. v. McNeill, 57 Tex. 478; Fordyce v. Nix, 23 S.W. 967; Gilbertson v. Railroad, 43 N.Y.S. 782; Railroad v. Austin, Admx., 69 Ill. 428; Railroad v. May, 33 Ill.App. 366; Rost v. Brooklyn Heights, 41 N.Y.S 1069. 2. Said instruction was also erroneous, in that it submitted to the jury issues not made by the pleadings -- was broader than the petition. Bank v. Westlake, 21 Mo.App. 565; State ex rel. v. Sitlington, 51 Mo.App. 256; Harper v. Railroad, 70 Mo.App. 604; Colliott v. Mfg. Co., 71 Mo.App. 163; Edwards v. Railroad, 79 Mo.App. 257; Kattleman v. Fire Assn., 79 Mo.App. 447; Kirby v. Railroad, 85 Mo.App. 345; Pryor v. Railroad, 85 Mo.App. 367; Fegan v. Grain Sep. Co., 92 Mo.App. 236; Budd v. Hoffheimer, 52 Mo. 297; Pinney v. Berry, 61 Mo. 366; Bank v. Murdock, 62 Mo. 70; Abbott v. Railroad, 83 Mo. 271; Mellor v. Railroad, 105 Mo. 455; Coontz v. Railroad, 115 Mo. 669; Slaughter v. Railroad, 116 Mo. 269; Chitty v. Railroad, 148 Mo. 64; De Donato v. Morrison, 160 Mo. 581; Wolfe v. Supreme Lodge, 160 Mo. 675; Heinzle v. Railroad, 182 Mo. 528; Logan v. Railroad, 183 Mo. 582. (3) The verdict was so grossly excessive as to show conclusively that the nine jurors who signed it were influenced by prejudice against defendant or sympathy for plaintiff, and that their verdict was not the result of a fair and impartial consideration of the evidence in the case, and for that reason the judgment ought to be reversed. Baker v. Stonebraker, 36 Mo. 338; Spohn v. Railroad, 87 Mo. 84; Ice Co. v. Tamm, 90 Mo.App. 202; Adams v. Railroad, 100 Mo. 555; Chlanda v. Railroad, 112 S.W. 249; Cook v. Railroad, 94 Mo.App. 425; Whalen v. Railroad, 60 Mo. 323; Nichols v. Glass Co., 126 Mo. 55; Furnish v. Railroad, 102 Mo. 438; Chitty v. Railroad, 166 Mo. 435.
Reed, Yates, Mastin & Harvey for respondent.
(1) No error was committed in any ruling by the court admitting non-expert testimony as to respondent's physical condition before and after the injury. 3 Wigmore on Evidence, p. 2616, and many authorities cited; Fulton v. Railroad, 125 Mo.App. 247; State v. Buchler ( rule), 103 Mo. 207; Lawson, Expert and Opinion Ev., p. 470; State v. Ramsey, 82 Mo. 137; State v. Parker, 96 Mo. 393; State v. David, 131 Mo. 394; Binsbacher v. Railroad, 108 Mo.App. 3; Wilkenson v. Mosely, 30 Ala. 572; Railroad v. McLendon, 63 Ala. 275. "A non-expert is competent to give his opinion as to the apparent health of a person whom he has had the opportunity to observe, this being a matter open to the senses, but incapable of exact description." 12 Am. and Eng. Ency. Law, 491; Hardy v. Merrill, 56 N.H. 227; 1 Wharton on Evidence, sec. 513. (2) 1. Plaintiff's instruction 5, on measure of damages, in that it confines the jury to the amount prayed for in the petition, follows the precedent of every instruction given in Missouri since courts were established. Hundreds of cases approving a like instruction might be cited. We content ourselves with Dougherty v. Railroad, 97 Mo. 657; McNamara v. Railroad, 106 Mo.App. 352; Devoy v. Railroad, 192 Mo. 207; Stobier v. Railroad, 203 Mo. 712; Girard v. Coal Co., 207 Mo. 258; Logan v. Railroad, 183 Mo. 591. 2. The instruction in question is not broader than the petition. If counsel thought it too broad they should have asked its modification. Swearingen v. Coal Co., 111 S.W. 545. (3) The verdict is not excessive, if plaintiff is in the physical condition depicted by the evidence. Waldhier v. Railroad, 87 Mo. 307; Markey v. Railroad, 185 Mo. 356; Reynolds v. Railroad, 189 Mo. 409. The recent trend of judicial opinion favors sustaining larger verdicts for permanent and practically total disabilities. Strand v. Railroad, 101 Minn. 85 ($ 20,000); Railroad v. Nesbit (Tex. Civ. App.), 97 S.W. 825 ($ 20,950); Huggard v. Glucose Sug. Ref. Co., 132 Ia. 724 ($ 32,916); Railroad v. Connelly (Neb.), 109 N.W. 368 ($ 27,500); Railroad v. Vanlandingham (Tex. Civ. App.), 85 S.W. 847 ($ 25,000); Railroad v. Toliver (Tex. Civ. App.), 84 S.W. 375 ($ 19,500); Smith v. Whittier, 95 Cal. 279 ($ 30,000); Railroad v. Brazzil, 78 Tex. 314 ($ 20,000); Railroad v. Ewing, 7 Tex. Civ. App. 8 ($ 20,000); Alberti v. Railroad (N. Y.), 43 Hun 421 ($ 25,000); Harrold v. Railroad (N. Y.), 24 Hun 184 ($ 30,000); Hall v. Railroad, 46 Minn 439 ($ 25,000); Railroad v. Friedman, 41 Ill.App. 270 ($ 30,000); Railroad v. Holland, 18 Ill.App. 418 ($ 25,000).
This is an action for damages for personal injuries received by plaintiff in a collision occurring on defendant's railroad, and alleged to have been caused by the negligence of defendant, its agent and servants. The jury trying the cause returned a verdict for $ 30,000 in favor of plaintiff, and judgment was rendered accordingly. Afterwards, upon the hearing of defendant's motion for a new trial and in arrest of judgment, plaintiff, by attorney, remitted $ 10,000 of said judgment. The court overruled defendant's said motions, whereupon an appeal was taken to this court.
Plaintiff is the wife of an army officer, stationed at Ft. Reno, Oklahoma. On the 9th day of October, 1904, plaintiff, her husband, daughter and son, were passengers on one of defendant's trains going from the union depot at Kansas City to Leavenworth, Kansas, and when the train was passing through the defendant's yards, in Kansas City, at a point about three hundred yards west of the union depot, the engine collided with the tender of another engine. A crossing switch was left open, and the engine, instead of proceeding westwardly on the main track, ran in on this cross-over track and collided with the tender of the other engine which was backing eastwardly on another track. The pilot or cowcatcher of the passenger engine, by reason of the collision, was broken and the forward part of the engine damaged, and the trucks of the tender of the other engine were knocked off the track and a large hole made in the water tank. When the collision occurred, plaintiff was thrown forward from her seat in the chair car, her face striking the back of the chair immediately in front of her, causing her nose to bleed, and she fell to the floor on her knees. Dr. A. J. McDonald, a dentist residing in Kansas City, was sitting on the opposite side of the aisle from plaintiff, and he, with Major Partello, plaintiff's husband, assisted her back to her seat. She was bleeding freely at the nose and seemed to be suffering great pain, and Dr. McDonald got a damp towel and bathed her face and otherwise tried to alleviate her suffering. This witness testified that the concussion between the two engines was violent, and threw him forward, but that he put his hands on the seat in front of him, and remained uninjured. He further testified that nothing intelligible was said by plaintiff in his presence, after she was injured, but that she was in a semi-conscious condition, and moaning practically all the time. 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 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...
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