Rosier v. Metropolitan St. Ry. Co.
| Decision Date | 01 April 1907 |
| Citation | 101 S.W. 1111,125 Mo.App. 159 |
| Parties | GEORGE M. ROSSIER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.
AFFIRMED.
Cause affirmed.
John H Lucas, Chas. A. Loomis and Ben F. White for appellant.
(1) The court erred in admitting the testimony of Dr. Forster in regard to the permanent injuries of plaintiff. The question was objectionable in form in that it called for the opinion of the witness upon a state of fact not disclosed by the evidence; and also because it passes upon a question to be submitted to the jury. Turner v. Haar, 114 Mo. 345; Senn v. Railway Co., 108 Mo. 143; Russ v Railroad, 112 Mo. 45; Smart v. K. C., 91 Mo.App. 586; Mammerberg v. Railroad, 62 Mo.App. 563; Riley v. Sparks Bros., 52 Mo.App. 572. (2) The court erred in not instructing the jury that certain testimony of the plaintiff was admitted for a single purpose only. Peabody v. Warner, 16 Mo.App. 556; Schlicker v Gordon, 19 Mo.App. 479; Sandige v. Hill, 70 Mo.App. 71. (3) The court erred in refusing to give defendant's instruction numbered 11, as requested by plaintiff. 1 Thompson on Negligence, secs. 65, 201, 251; Goshen v. England (Indiana), 5 L. R. A. 253.
Boyle Guthrie & Smith for respondent.
(1) The purpose of the question was to ascertain the doctor's opinion as to the permanency of the injury. (2) The admission of evidence which was competent for any purpose is not error; and where one claims that the evidence was competent only for a special purpose he should ask an instruction to that effect. Barbour v. McKee, 7 Mo.App. 587; Garesche v. College, 76 Mo. 335; Dysart v. Forsythe, 84 Mo.App. 196; Milling Co. v. Transit Co., 122 Mo. 258; Wright v. Gillespie, 43 Mo.App. 253; School Dist. v. Sheidley, 138 Mo. 691. (3) The law on this question is well settled. In some cases where, but for the results to be anticipated, the act complained of would be innocent, the alleged wrongdoer is only responsible for these results of the otherwise innocent acts which were anticipated, because the act, otherwise innocent in itself, was only wrongful because of the results to be anticipated. But where the act is negligent in and of itself, the negligent wrongdoer is responsible for all damages which directly flow from it, however unexpected, provided they do flow from it in a direct chain of causal connection. 142 Mo. 388; 195 Mo. 629.
This is a suit for personal injury alleged to have been the result of defendant's negligence. The only evidence in the case was introduced by the plaintiff, from which it appears that plaintiff was injured on the fifteenth of November, 1904, while he was attempting to board one of defendant's cars at Twelfth street and Grand avenue in Kansas City, Missouri. There were four other persons in his company at the time of the accident, three of whom besides plaintiff testified in the case. The testimony of the witnesses goes to show that when plaintiff was in the act of getting on the car it started suddenly forward which had the effect of throwing the plaintiff to the ground causing his injury. The injury was apparently a slight one on the shin bone, but it finally resulted in blood-poisoning and for a while the life of the plaintiff was threatened. The defendant contends that in the event it is to be held liable, it should be for the original injury which appeared to be slight and ought not to be held liable for plaintiff's after condition, as it was brought on by his own carelessness in taking care of it. The specific claim of negligence is that plaintiff treated his wound at the beginning for several days with ammonia and by keeping it bandaged with a dirty cloth which was the cause for blood-poisoning. The evidence to sustain this contention was slight. It is true plaintiff treated his wound with ammonia, but he says that he bandaged it with a clean linen handkerchief. Shortly afterwards he used an ointment prescribed by a doctor and continued to use his handkerchief as a bandage. On cross-examination he stated that he put the ointment on twice a day. He was then asked: Dr. Block, an expert witness, testified that the treatment described would likely produce blood-poisoning.
The defendant contends that the court committed error in allowing Dr. Forster to answer the following question: "Now, assume that that scar was the result of a sudden blow of some kind, such as a man might ordinarily get or might receive in being suddenly thrown or falling, or as to produce a wound such as would produce that scar, and that that occurred about a year before your examination, and considering Mr. Rosier's age and general physical condition which you found and have described, will it be permanent or will it pass away--have you a judgment?" The witness answered that: "The very fact that it had arrived at this state at so remote a period from the time of the injury--so long afterwards--and that it hasn't got well--I think it is an inevitable result that it will not get well--that it is a permanent injury."
Dr. Forster had previously testified that he had examined plaintiff's wound which was about a year after it had been inflicted and testified: And, "He isn't able to move either the ankle or toes as a man would ordinarily do in walking, in motions of the body or limb." After being asked other questions of a similar kind he was asked the question objected to.
One of the objections to the question was, that it was not...
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