Rainier v. Quincy, O. & K. C. R. Co.

• Decision Date: 30 December 1924
• Docket Number: No. 24096.,24096.
• Citation: 271 S.W. 500
• Parties: RAINIER v. QUINCY, O. & K. C. R. CO.
• Court: Missouri Supreme Court

271 S.W. 500

RAINIER v. QUINCY, O. & K. C. R. CO.

No. 24096.

Supreme Court of Missouri, Division No.

December 30, 1924.

Rehearing Denied March 16, 1925.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Action by Lucille J. Rainier, by next friend, against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. C. Leopard & Son and Dudley & Brandom, all of Gallatin, and J. G. Trimble, of St. Joseph, for appellant.

Miles Elliott, of St. Joseph, A. G. Knight, of Trenton, L. B. Gillihan, of Gallatin, and Duvall & Boyd, of St. Joseph, for respondent.

LINDSAY, C.

The plaintiff, by her father as next friend, sues on account of injuries sustained by her while she was a passenger on one of defendant's trains. She lived with her parents at Hurdland, in Knox county, and at about 7:30 in the morning of April 13, 1921, took passage on a mixed train for Quincy, Illinois. The train consisted of several freight cars, a combination baggage and smoking car, and a passenger coach at the rear. The plaintiff sat in the passenger coach, near the rear, and on the south side, the train being east bound. Shortly after 8 o'clock, and at a point 2 or 3 miles east of Edina, certain of the cars, including the passenger coach, left the rails. The coach soon turned over, and fell southward down the embankment at that point. The embankment was about 15 feet in height. The coach in which plaintiff was riding fell south upon its side, and turned completely over, so that it came to rest on its left side, with the top of the car toward the track. The plaintiff testified that, owing to the quickness of the occurrence and the confusion, she did not well remember the details; that after the car came to rest, the first thing attracting her attention was a prayer by a trained nurse who was also a passenger. Plaintiff was assisted in getting out through the rear door, and to a point west and a short distance from the track, where she remained until other help came. In a short time persons from nearby points arrived, and plaintiff was helped to enter a Ford car which started toward Edina. About one-fourth of a mile "on the road from the wreck she met another automobile in which was her father, who had been told about the wreck by defendant's agent at Hurdland. She was assisted into the back seat of this automobile. The driver and her father desiring to see the wreck, they drove on to that place, and remained there about 30 minutes. They then proceeded homeward, and on the way met Dr. Wilsey, the family physician, who had been summoned to come by plaintiff's father when he learned that there had been a wreck. The two cars stopped, and there was a short conversation between the occupants, but it appears that the doctor did not get out of his car to examine plaintiff. He testified she "was lying back in the seat in somebody's arms," that "she didn't appear to be quite in her right mind, and she was in a very pale condition," was "dazed," and in a "pretty nervous condition." This doctor drove on to the wreck, and after remaining a while, returned to Hurdland and called upon plaintiff at her home at about noon, found her in bed, and found that her left ankle and left knee and her left hand and arm were cut and bruised; that there was a bruise or swelling on the left side of her head about half as large as a hen egg, and that she was "bruised or black and blue all across her back over her kidneys." He was called twice afterward on that day to see her, and called upon her after that for 10 days or more. She remained in bed for about 2 weeks, and thereafter for a like period, a part of the time. The plaintiff was in school prior to the time of her injury, and went back to school in the fall term, but, as the evidence tends to show was not able to study as successfully or engage in athletic games as she formerly had done. The testimony on the subject of the nature and permanent character of her injuries will be more particularly considered later, since this is the essential issue of fact, and it is insisted by appellant that the verdict is excessive and the result of passion and prejudice. The suit was brought on October 1, 1921, in Grundy county, and the venue changed to Daviess county. The plaintiff asked for $50,000, had a verdict for $8,500 and defendant has appealed.

The petition after the preliminary averments alleges at much length and in detail, injuries done to virtually all of the members, organs, and parts of plaintiff's body and the structures and tissues thereof, and to the circulatory, muscular and nervous systems and alleges that such injuries are permanent. The answer was a general denial, with an admission that defendant was engaged in operating a railroad in Missouri, "And that on the 13th day of April, 1921, plaintiff Lucille Rainier was a passenger on one of defendant's trains which was derailed at a pant near Edina, Mo., and if she received any injuries at said time, defendant is willing to compensate her." The opening statements of counsel were taken and are incorporated in the bill of exceptions and counsel for defendant opened his statement to the jury by saying:

"Gentlemen, as you have heard in the answer, the defendant in this case is perfectly willing to compensate this young woman for any injuries she received."

The defendant assigns error in several particulars.

I. It is insisted that error was committed in admitting testimony regarding complaints made by plaintiff. This has reference to certain evidence by plaintiff's mother as to plaintiff's condition when she reached home, and to testimony of Dr. Wilsey who examined her very soon thereafter. Plaintiff's mother testified to finding cuts and bruises upon plaintiff's left arm, knee, and ankle, and a bruise upon her head and upon her back. The following question was asked and answer given:

"Q. Go ahead and tell what else you see about her, if you think of anything else. A. Well; we put her to bed, and she complained of her back."

Defendant asked that this be stricken out as hearsay and a self-serving statement. Similarly, in the testimony of Dr. Wilsey as to what he observed when he examined the plaintiff perhaps an hour later. He testified: "She was complaining very much"— The witness being interrupted, and objection being made, the court instructed the witness not to give any conversation, but that he might state the fact that the plaintiff complained. The witness then stated that she complained of her back, her head, arm, back, knee and ankle and in that connection testified as to cut, and bruises found by him upon the parts mentioned. Defendant assigns error upon this as being hearsay. There is no merit in the contention. No conversation or statement of plaintiff was given. No authority is cited by defendant, There was nothing more than the statement that as a fact she "complained," while her mother and the doctor were engaged, respectively, in examination and observation of the cuts and bruises on the parts of which complaint was made. The plaintiff herself had testified that her back hurt her at that time. The trial court did not err in its action under the circumstances. Lindsay v. Kansas City, 195 Mo. loc. cit. 180, 93 S. W. 273; Squires v. Chillicothe, 89 Mo. 226, 1 S. W. 23; 1 Greenleaf on Evidence, section 102.

II. Error is assigned in that the court refused to strike out the statement of plaintiff's mother that on the occasion referred to in the foregoing paragraph plaintiff "had no use" of her left arm. The witness was describing the various injuries found by her. The following question and answer appear:

"Q. Go ahead. A. And she was covered with blood. Her face was bloody, her hands. She had no use of this arm."

The court, having denied the motion to strike out the last statement as a conclusion, the following was given:

"Q. What was the condition of her left arm as you noticed it, Mrs. Rainier? As you saw it? A. Well, I thought at first it was broken. It was sprained, and seemed to be kind of twisted, and then there were places kind of like something had hit her, kind of black places."

The plaintiff's arm was not broken. None of her bones was broken. Her case did not proceed upon the theory of a specific permanent injury to the left arm, but rather of injuries to internal organs and to the nervous system in general, as the permanent effects. The statement made, and not stricken out, was in some measure a conclusion of the ` witness, but was also in a sense descriptive of the want of motion or activity in the left arm at that time, given as an impression formed at that time by the witness in making a nonexpert examination soon after the occurrence of the injuries. Under these circumstances, the trial court should not be convicted of error in permitting the statement to stand. Elliott v. Metro. St. Ry. Co., 157 Mo. App. 517, 138 S. W. 663; Osborne v. Wells (Mo. App.) 211 S. W. 887.

III. The next objection goes to the action of the court in allowing plaintiff's attorney to ask her father, on redirect examination, certain questions as to the circumstances under which he had employed attorneys to bring the suit. In his cross-examination of the plaintiff's father, counsel for defendant asked many questions as to attorneys, or persons representing attorneys appearing shortly after the wreck of the train, and soliciting the right to bring a suit. Inquiry was made both as to attorneys then representing plaintiff, and also as to others, and as to whether and when the several counsel for plaintiff first came; and counsel extended his inquiry into the question of the contingent nature of the compensation to be received by the attorneys, and finally asked if they were to have one-half of what was recovered. To that question the court sustained an objection made by one of counsel for plaintiff. Afterward, counsel for plaintiff was permitted in redirect examination to ask the witness as...