Patterson v. Springfield Traction Company
| Decision Date | 05 March 1914 |
| Citation | 163 S.W. 955,178 Mo.App. 250 |
| Parties | NINA PATTERSON, Respondent, v. SPRINGFIELD TRACTION COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court.--Hon. Arch. A. Johnson Judge.
AFFIRMED.
Judgment affirmed.
Delaney & Delaney for appellant.
(1) The court erred in admitting the evidence of the cost doctor's bills, hospital and medicine bills, of an operation of curatement. Dunnevant v. Mocksond, 122 Mo.App. 428; Haas v. Railroad, 111 Mo.App. 706; Waddell v. Met. Ry. Co., 113 Mo.App. 680; Caplin v. Transit Co., 114 Mo.App. 256; Halley v. Light Co., 115 Mo.App. 652; Wilbur v. Electric Co., 110 Mo.App. 689; Deland v. Cameron, 112 Mo.App. 704; Steinmann v. Transit Co., 116 Mo.App. 673. (2) The opinion of an expert stands or falls with the supporting facts. Therefore no opinion is properly admissible unless all the facts upon which such opinion is predicated is submitted to the jury. Otherwise the one giving the opinion usurps the function of the jury. Smith v. Tel. Co., 113 Mo.App 429; Bragg v. Railway, 192 Mo. 331; Glasgow v. Railway, 191 Mo. 347-358; Spaulding v. City of Edina, 122 Mo.App. 65-69. (3) A general charge of negligence (even if any is made, which we question) yields to the specific charge which is clearly made--negligent operation of the car. Joseph v. Railway, 129 Mo. 603; Thompson v. Livery Co., 214 Mo. 487; Orcutt v. Bldg. Co., 201 Mo. 424-441. (4) The burden was upon plaintiff to show that the condition of which she complained was caused by the force of the derailment. If this be left to conjecture the plaintiff fails. Especially is this so when the derailment is trifling and the story of plaintiff so unreasonable as is shown by this record. De Maet v. Fidelity Co., 121 Mo.App. 104-106. (5) It is error, to permit a physician, examined as an expert, to draw conclusions from the facts in the case as to what caused plaintiff's condition, where even his testimony discloses (as it does in this case) the fact that the same condition might result from various causes. Glasgow v. Railway, 191 Mo. 347-358; Spaulding v. City of Edina, 122 Mo.App. 65-69. (6) To recover for doctor's bills, where it is not alleged that they are actually paid, plaintiff must allege specifically that she is liable therefor. The proof shows the contrary and the allegations of the petition show that she is not liable, but is insolvent. Nelson v. Railway, 113 Mo.App. 662. (7) The damages are excessive and the award is clearly the result of bias and prejudice.
Williams and Galt for respondent.
(1) The petition was amendable, and defendant cannot complain of the amendment. Rawson v. Railroad, 129 Mo.App. 613; Prash v. Railroad, 151 Mo.App. 415; 29 Cyc. 567-569. (2) The evidence as to reasonable cost of the surgical operation of curettement was admissible after the fact was established that curettement was the only method for the relief of the condition of plaintiff produced by the accident, and for the further reason that this evidence supports the allegation in plaintiff's petition that she will "in the future be compelled to expend large sums for the necessary treatment of her said injuries." Sotebier v. Transit Co., 203 Mo. 702; Ballard v. Kansas City, 110 Mo.App. 395; Wilbur v. Railroad, 110 Mo.App. 697. (3) The questions asked of plaintiff's medical experts were not purely hypothetical but were based upon facts within their knowledge, developed by personal examination, which facts they had just detailed to the jury, and they were called upon to, and did express their opinions, that the conditions found could result, naturally and directly, from the accident described. This was withn the prescribed legal limits of expert testimony. Brown v. Huffard, 69 Mo. 305; Wilbur v. Railroad, 110 Mo.App. 697; Reilley v. Sparks, 52 Mo.App. 574; Benjamin v. Railway, 50 Mo.App. 608; Holloway v. Kansas City, 184 Mo. 39; Jones v. Traction Co., 137 Mo.App. 416. (4) Defendant's instruction XI, refused, is based on the false assumption that the record shows plaintiff to be a married woman--whereas it shows she is a single person, and dependent upon her own earnings for her livelihood. The instruction refers to loss of earning capacity and not loss of services. The earnings of a married woman belong to her and not to her husband. Nelson v. Railroad, 113 Mo.App. 659; Snickles v. St. Joseph, 155 Mo.App. 308. (5) The judgment is for the right party and the award of damages is not excessive under the evidence. Kennedy v. Railroad, 36 Mo. 351; Merrill v. St. Louis, 12 Mo.App. 469; Loftis v. Kansas City, 156 Mo.App. 687; Morrell v. Lawrence, 203 Mo. 363; Choquette v. Railroad, 152 Mo. 266; Fisher v. St. Louis, 189 Mo. 579; Edwards v. Railroad, 82 Mo.App. 485.
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 employees, 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 $ 2500. 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 she went on to her work as ticket seller at an amusement park and tried for some days to do her usual work, so as to hold her position, but that a month or so later she was compelled to quit as her injuries developed. She consulted a physician, Dr. Dorrell, the next morning after the accident, who then made an examination of her. He says, in short, that he found the womb anteverted, i. e., thrown forward, and one ovary prolapsed and dropped down. He also said he had examined her a short time before the accident and these conditions did not exist; that these female organs were then in a normal condition. The occasion of his previous examination was that she was complaining of headaches and he made the examination to determine whether her headaches was caused by any derangement of the female organs and found that it was not. Dr. Dorrell continued to treat her for some time after the accident and examined her shortly before this trial. He described the progress of plaintiff's malady by saying that this misplacement of the female organs impaired the circulation and caused chronic congestion therein, which brought about a condition called endometritis, i. e., an inflamed and thickened condition of the inside or lining of the womb. It was also shown that the womb became enlarged and that there was a bloody mucous discharge. These conditions resulted in nervousness, headaches, depressed feeling and some pain--ills designated as female troubles. As to her condition Dr. Dorrell was strongly corroborated by Dr. Roseberry, who examined her some two or three months after the accident and again shortly before the trial.
The important question for the jury to determine was whether these maladies were caused by the derailment of the street car in question. On this point we have Dr. Dorrell's evidence, as well as that of plaintiff, that these conditions did not exist shortly before the accident and that the probable cause of the same, to-wit, the displacement of the female organs, did exist shortly thereafter.
Over defendant's objection that the question combined hypothetical facts with facts actually observed and...
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