Shamp v. Lambert
| Decision Date | 02 October 1909 |
| Parties | MYRTLE SHAMP, Respondent, v. ALBERT BOND LAMBERT, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.
AFFIRMED.
Judgment affirmed.
McKeighan & Watts and Wm. R. Gentry for appellant.
John H Drabelle of counsel.
(1) The court erred in overruling defendant's demurrer to the evidence for the following reasons: (a) Because plaintiff's own evidence showed that her own negligence directly contributed with the negligence of the defendant's chauffeur in causing her to be injured. (b) Because there was no evidence offered which showed that the chauffeur was acting in the line of his duty as the servant of the defendant. (2) The court erred in overruling the defendant's application for a medical examination of the plaintiff. The court has an undoubted right to appoint a physician and surgeon to make such an examination and this was a proper case for such appointment because of the large number of internal injuries and disorders alleged to have resulted from the accident, and because of the fact that the amended petition, filed shortly before the trial, set up additional injuries not mentioned in the first petition. The following authorities show that the court had the power to make the order. Fullerton v. Fordyce, 127 Mo. 1; Haynes v. Trenton, 123 Mo. 326. The court did not refuse it as a matter of discretion, but had an erroneous idea that the court had no power to make such order, and so stated in overruling the motion. (3) The court erred in giving instruction No. 1 set forth on pages 70 and 71 of appellant's abstract, in that the following paragraph found in said instruction was not supported by any evidence "And if the jury find from the evidence that on said day defendant owned and by his servant operated the automobile mentioned in the evidence."
A. R. & Howard Taylor for respondent.
(1) Under the undisputed evidence in this case, upon each material issue the verdict is well sustained. The plaintiff was rightfully on the street where persons in large numbers daily and almost constantly are for the purpose of boarding cars as passengers. The defendant's automobile was near the curb, some distance away, when the plaintiff, as the car approached the usual stopping place, stepped forward and stood in position to get on the car, the car came on, and as the plaintiff watched the approach of the car, the defendant's chauffeur, without looking where he was going and without giving any signal of his intention to move the automobile, suddenly drives it backward against and over the plaintiff and inflicted the injuries. (2) We submit that the application for medical examination was properly overruled because it asked the judge to do an act unauthorized by law--there being no such power in a court at the common law, and there being no statute in this State authorizing a court to make such order. Railroad v. Botsford, U. S. Sup. 141; Railroad v. Sletson, U. S. Sup. 177. Our courts have, it is true, held that courts may, in their discretion, make an order for such examination. The case of Haynes v. Trenton, 123 Mo. 326, was one where the plaintiff exhibited her person in evidence on the trial, and the court held that after the plaintiff had so put her person in evidence the defendant had the right to have surgeons examine the part so exposed in evidence. Haynes v. Trenton, 123 Mo. 326; Fullerton v. Fordyce, 121 Mo. 1.
This is a suit for damages accrued to plaintiff through personal injuries occasioned by the negligence of the defendant. Plaintiff recovered and defendant appeals. It appears plaintiff was injured while standing in the street in order to board a street car, by the defendant's servant negligently backing his automobile against and upon her. Plaintiff had visited Union Station on business and walked therefrom to the north side of Market street adjacent to the pavement and at the usual stopping place for street cars, near the center of the station. Her purpose was to take the first westbound street car homeward. Defendant's automobile in charge of his chauffeur was standing at the time near the pavement on the north side of Market street and within about eight feet of the point where passengers are admitted and discharged from westbound street cars. Upon the street car approaching from the east, and as it neared the usual stopping place, plaintiff stepped into the street, intending to enter the same when it stopped. While she was thus standing and before the car stopped, defendant's chauffeur, without warning to plaintiff, and without looking around, to see whether or not his act would endanger her or others, moved defendant's automobile backwards and upon her with great force. The automobile passed over her limbs and upon her body. This act resulted in breaking several bones in one of plaintiff's limbs between the ankle and knee and inflicting internal injuries as well.
Upon a trial before a jury, plaintiff recovered a verdict for $ 5000. Thereafter, upon consideration of the motion for a new trial, the court indicated that unless a portion of the damages recovered was remitted, a new trial would be awarded. Thereupon plaintiff entered a remittitur of $ 1500, and judgment was given for the plaintiff in the amount of $ 3500.
Neither defendant nor his chauffeur gave testimony at the trial. In fact, there was no proof introduced other than that for the plaintiff. Plaintiff and other eye-witnesses detailed the circumstances of her injury about the same. All of the testimony tends to prove a case of negligence on the part of defendant. It was certainly gross negligence for defendant's chauffeur to suddenly move the automobile backward with great force, at least without warning that he was about to do so, or looking out for the safety of persons about the same at the crossing of a public street. It must be remembered that the place of the injury was in the public street near the Union Station in a large city, where persons are almost constantly getting on and off the street cars. These circumstances, of themselves, should enjoin care and vigilance for the safety of others upon persons operating dangerous conveyances thereabout.
It is argued, first, that the court should have declared plaintiff guilty of negligence as a matter of law, and directed a verdict for the defendant. That is to say, it is argued that plaintiff's careless conduct directly contributed to her injury in such a manner as to justify the court in declaring as a matter of law that she ought not recover. This argument is without merit. When more than one inference can be fairly drawn from the facts as to the care or want of care on the part of the plaintiff, the question of contributory negligence is for the jury. It was certainly proper in this instance to refer the question to the jury. It may be remarked in this connection, however, that the facts present a case where the plaintiff is about as nearly without fault as any which we have had occasion to review. It appears that plaintiff, a lady about thirty years of age, was on her road from Union Station to her home. She had taken her position only a moment before at the usual stopping place of the street cars in order to enter the car when it stopped. The street car was then approaching and in near proximity to her. Plaintiff's attention was directed to the approaching car, as was entirely proper. The automobile was not coming toward her, but on the contrary, was standing at rest against the pavement, eight or ten feet away. Plaintiff had certainly no reason to suppose that it would be run backwards upon her without warning, by the careless act of defendant's servant. [Mitchell v. C. & A. Ry. Co., 132 Mo.App. 143, 153.]
It is argued the court should have directed a verdict for the defendant because it does not appear the chauffeur was acting in the line of his duty as a servant of the defendant at the time the injury was inflicted. In making this assignment of error, counsel have certainly overlooked the fact that plaintiff testified the defendant told her that the automobile was his automobile and that the chauffeur operating the same was his chauffeur; in other words, his servant. It appears that the defendant called upon plaintiff after her injury and had some conversation with her respecting the same, etc. He suggested, too, that he would furnish a physician to attend her. This she declined however, having employed a physician on her own account. Plaintiff testified that during this conversation defendant told her that it was his automobile which inflicted the injury, and that the chauffeur operating the same was his chauffeur. This testimony is not controverted, for, as stated, neither defendant, his chauffeur, nor any other witness in behalf of defendant gave testimony in the case. The master is liable for all injuries to person or property caused by...
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