Patterson v. Springfield Traction Co.

• Decision Date: 12 February 1914
• Parties: PATTERSON v. SPRINGFIELD TRACTION CO.
• Court: Missouri Court of Appeals

163 S.W. 955

178 Mo. A. 250

PATTERSON v. SPRINGFIELD TRACTION CO.

Springfield Court of Appeals. Missouri.

February 12, 1914.

Rehearing Denied March 2, 1914.

1. PLEADING (§ 248)—AMENDMENT OF PETITION—NEW CAUSE OF ACTION.

An amendment of the petition, by adding the part below quoted, so as to make it allege that, while plaintiff was on defendant's street car as a passenger, the car jumped the track "by reason of the carelessness and negligence of the defendant, its agents, servants and employés," and plaintiff was thereupon thrown violently from her seat and seriously injured, did not constitute a departure.

2. PLEADING (§ 428)—PETITION—OBJECTIONS —ORAL OBJECTIONS.

The taking of an objection to the petition by oral objection to the introduction of evidence thereunder is not favorably regarded, and, if permissible, would not reach defects in a former petition, or raise the propriety of its amendment.

3. EVIDENCE (§ 571)—EXPERT WITNESSES.

The evidence of a medical expert is purely advisory, and is in the nature of an opinion based on facts assumed to be true; his credibility being for the jury as in the case of other witnesses.

4. TRIAL (§ 236) — INSTRUCTIONS — EXPERT EVIDENCE—CONSIDERATION BY JURY.

An instruction is proper that, before the opinion of a medical expert has any value, the jury must find the facts on which it is based to be true.

5. EVIDENCE (§ 549)—EXPERT OPINION—HYPOTHETICAL QUESTIONS.

The truth of the facts on which the opinion of a medical expert is based may rest, in whole or in part, on his own evidence.

6. EVIDENCE (§ 506)—EXPERT TESTIMONY — HYPOTHETICAL QUESTIONS — PROVINCE OF JURY.

A physician was asked a hypothetical question whether a prolapsed condition of one of the ovaries and an anteverted condition of the womb could be caused by injuries resulting from a woman, who was sitting in a street car when it derailed, being thrown out of her seat with considerable force, and receiving a blow in the region of the thigh, and also receiving a bruise on the leg and an injury to the hip, and stated that a falling forward in a street car was liable to bring about an anteversion of the womb, which was constructed in the manner stated, and that a falling forward thereof causes a displacement of the uterus. Another physician was asked a question, to the effect that, supposing the evidence showed that a passenger was riding in a street car when it jumped the track onto the ground with some force, and she was thrown from her seat forward so as to receive a bruise on her hip and groin, "Would you say that such a falling as that would cause a prolapsed condition of the womb or the condition that you found there the first time?" and the witness answered that an accident of that kind might produce a dropping down of the womb, and that such anteversion "could be" caused by the accident. Held, that the hypothetical questions did not usurp the province of the jury, in that they stated a conclusion rather than an opinion of the witness.

7. EVIDENCE (§ 471) — OPINION EVIDENCE — CONCLUSIONS.

Evidence by plaintiff in a personal injury action that she was not able to work continuously after the accident, and had to quit her position because she was unable to work, was not objectionable as a conclusion.

8. DAMAGES (§ 168)—PERSONAL INJURIES.

One receiving personal injuries may recover damages, not only for the amount already incurred for medical or surgical treatment, but may also recover the reasonable expense of such future treatment as may be reasonably necessary because of the injury, and hence proof of the cost of such future treatment, as a surgical operation, is admissible.

9. CARRIERS (§ 318) — PASSENGERS — ACTIONS FOR INJURIES—SUFFICIENCY OF EVIDENCE— PROXIMATE CAUSE.

In a street car passenger's action for injuries received in a derailment, evidence held to sustain a finding that plaintiff's injuries were proximately caused by the accident.

10. CARRIERS (§ 315)—PASSENGERS—ALLEGATIONS OF PETITION — GENERAL NEGLIGENCE.

A petition, alleging that the street car on which plaintiff was a passenger jumped the track by reason of the negligence of defendant and its employés, and plaintiff was thereby violently thrown from her seat and injured, charged general and not specific negligence, so that plaintiff was not limited to proof of negligence in operating the car.

11. CARRIERS (§ 314) — PASSENGERS — INJURIES—ALLEGATIONS—PETITION.

If the relation of carrier and passenger is shown to exist when the injury is received, in a derailment, the petition need only allege that the car was derailed by the carrier's negligence, and that plaintiff was injured thereby; the burden being on the carrier to show that it was not negligent.

12. CARRIERS (§ 280)—PASSENGERS—CARE REQUIRED.

A carrier of passengers is held to the highest degree of care in operating its cars, and can only relieve itself from liability for injuries sustained in a derailment by showing that the accident was inevitable, and could not have been prevented by human foresight.

13. CARRIERS (§ 316)—PASSENGERS—INJURIES —SPECIFIC NEGLIGENCE.

While the burden is not on a passenger, injured in a derailment, to show any negligence causing the derailment, where she alleges general negligence by the carrier, she may nevertheless show specific defects without destroying the presumption of negligence by the carrier.

14. HUSBAND AND WIFE (§ 233) — ACTIONS FOR INJURIES—EVIDENCE.

Evidence, in an action for an injury to a street car passenger in a derailment, held to sustain a finding that plaintiff was a single woman at the time of the accident.

15. HUSBAND AND WIFE (§ 233)—INJURIES TO WIFE—RIGHT OF ACTION.

Since a married woman could recover for loss of time in earning a livelihood, and for loss of earning capacity resulting from personal injuries, the question of whether a woman who sued to recover such items of damage was married was immaterial.

16. DAMAGES (§ 46) — PERSONAL INJURIES — MEDICAL EXPENSES.

In order to recover medical expenses resulting from personal injuries, they need not have been actually paid if a legal liability has been incurred therefor, even though the patient be insolvent and sues as a poor person.

17. DAMAGES (§ 33)—PERSONAL INJURIES— REDUCTION OF DAMAGES.

The fact that the physical condition or health of one street car passenger, injured in a derailment, is such that she received a more serious injury than she would have received had her health been in a better condition, or than another passenger in better health would have received, is not a defense to an action for such damages, or a ground for reducing the damages recoverable.

18. DAMAGES (§ 132)—SUFFICIENCY OF EVIDENCE—PERSONAL INJURIES.

Evidence, in a street car passenger's action for personal injuries sustained in a derailment, held to sustain a verdict for $2,500.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Action by Nina Patterson against the Springfield Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Delaney & Delaney, of Springfield, for appellant. F. B. Williams and M. H. Galt, both of Springfield, for respondent.

STURGIS, J.

This is a suit for personal injuries received by plaintiff by reason of the derailment of one of defendant's electric cars, on which plaintiff was a passenger. The suit was brought to the January term, 1913, of the circuit court, at which term the plaintiff, of her own motion and by leave of court, made an amendment of her petition. The gist of the amended petition is that, while plaintiff was on defendant's electric car as a passenger, "the said car jumped the track by reason of the carelessness and negligence of the defendant, its agents, servants and employés, and plaintiff was thereupon and thereby violently thrown out of her seat and received serious and permanent personal injuries," describing the same, her suffering, treatment, expenses, etc. The words in italics show the amendment. The defendant then filed its answer, a general denial. The defendant also asked and obtained a continuance to the next term of court because of the amendment, presumably on the ground of raising new issues. The case went to trial at the next term, and defendant objected ore tenus to the introduction of any evidence, for the reason that the original petition failed to state a cause of action, and the amended petition constitutes in law a departure The overruling of this objection constitutes the first assigned error.

In the first place we have no hesitation in holding that this was a proper amendment, even if objection had been made and exception saved in a proper manner. The amendment did not change the cause of action. In the next place, raising an objection to the petition by oral objection to the introduction of evidence is not regarded with favor for any purpose, and certainly goes no further than to raise objection to the petition then before the court, and not to the defects in a former petition, or the propriety of an amendment thereof.

The suit is for $5,000, and on a trial by jury plaintiff recovered $2,500. The second objection relates to the admissibility of evidence. All the evidence shows that the front wheels or truck left the rails, dropped to the ground between the ties causing the car to come to a sudden stop. The witnesses differ much as to the rate of speed and the violence of the stop. The plaintiff's evidence is that the stop was so violent as to throw her forward against the next seat and to the floor, causing visible marks and swelling on her side near the hip and on her leg. She was transferred to another car, and made no complaint at the time, though she says it pained her, but she did not know the extent of her injuries. She also says that she told the conductor on the car to which she was transferred of the accident, but that conductor says it was the next day after the accident that she told him, and that she did not then claim to be injured She says sh...