Showen v. Metropolitan St. Ry. Co.

• Decision Date: 27 May 1912
• Parties: SHOWEN v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

148 S.W. 135

164 Mo. App. 41

SHOWEN v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

May 27, 1912.

1. ABATEMENT AND REVIVAL (§ 54) — ACTIONS FOR PERSONAL INJURIES—DEATH OF PLAINTIFF PENDING ACTION—EFFECT.

At common law an action for personal injuries did not survive the death of the person injured, but both the cause and the action to enforce it abated on his death before judgment, and the right of his administrator to be substituted as plaintiff and to prosecute to judgment an action begun by the intestate exists only by statute.

2. ABATEMENT AND REVIVAL (§ 75) — ACTIONS FOR PERSONAL INJURIES—DEATH OF PLAINTIFF PENDING ACTION—EFFECT.

The right of an administrator to be substituted as plaintiff, and to prosecute to judgment an action begun by his intestate for a personal injury, is not given by Rev. St. 1909, § 105, authorizing actions for torts by administrators, except actions for personal injuries, nor by sections 5425 or 5426, authorizing actions for negligent death, but is given by section 5438, providing that causes of action brought by the injured party for personal injuries shall not abate by reason of his death, but the cause of action shall survive to his personal representative, provided the personal injuries did not result in death, and an administrator substituted as plaintiff must allege that the death of his intestate did not result from the injuries complained of.

3. PLEADING (§ 403)—DEFECTS IN PLEADINGS.

The defect in an amended petition filed by an administrator substituted as plaintiff in an action begun by his intestate for personal injuries, arising from the failure to allege that the death of the intestate did not result from the injuries complained of, was not cured by answer in the nature of a general traverse.

4. TRIAL (§ 253)—INSTRUCTIONS.

An instruction in an action prosecuted by an administrator substituted as plaintiff for his intestate, who had sued for a personal injury, which assumes to cover the whole case and to direct a verdict, is erroneous where it fails to submit the issue whether the death of the intestate was the result of the injuries complained of.

5. EVIDENCE (§ 575)—TESTIMONY OF WITNESS AT FORMER TRIAL—ADMISSIBILITY.

Where the party, against whom is offered the evidence of the testimony of a witness at a former trial, had an opportunity to confront the witness and cross-examine him, the evidence is competent where the witness is dead, insane, or beyond the seas, or where he has been kept away by the connivance of the party.

6. EVIDENCE (§ 582)—TESTIMONY OF DECEASED WITNESS TESTIFYING AT FORMER TRIAL—ADMISSIBILITY.

The best evidence of the testimony of a witness, since deceased, given at a former trial, is the notes of the court stenographer when properly vouched for by his testimony; the stenographer being an officer of the court, and the law presuming that he accurately took the notes of the testimony, and that his translation is correct.

7. APPEAL AND ERROR (§ 1001)—VERDICT— CONCLUSIVENESS.

Where the testimony in a personal injury action justifies the inference that the injury occurred as claimed by plaintiff, an issue of fact for the jury is raised, and the court on appeal will not weigh the evidence, nor disturb the verdict on the theory that it is contrary to the physical facts.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by Cyrus C. Armstrong, prosecuted after his death by John A. Showen, administrator, against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

John H. Lucas and Hogsett & Boyle, all of Kansas City, for appellant. John A. Showen, of Stanberry, Aleshire & Gundlach, of Kansas City, and R. S. Robertson, of Sedalia, for respondent.

JOHNSON, J.

On March 6, 1908, Cyrus C. Armstrong commenced this suit in the circuit court of Jackson county to recover damages for personal injuries he alleged were caused by the negligence of defendant. The injury occurred October 16, 1907, and the petition alleged that it was caused by the negligence of defendant in suddenly starting a street car which had been stopped at a regular place for the reception and discharge of passengers while the plaintiff was in the act of alighting. The answer was a general denial. There was a trial of the cause in March, 1909, at which plaintiff appeared both as a party and as a witness. For some reason, not important now, that trial did not result in a judgment, and the cause was set for retrial. On August 25, 1909, while the cause was pending, the plaintiff died, and on the 25th day of September following the court entered an order reviving the cause in the name of the administrator of his estate, and thereafter the action was prosecuted by the administrator as plaintiff. An amended petition was filed by the administrator which repeated the allegations of the original petition respecting the cause of action, and, in addition, alleged the facts of the death of Armstrong, the appointment of the administrator, and his substitution as plaintiff. The amended petition contained no averment that the death of Armstrong did not result from the injury caused by the pleaded negligence. Defendant did not attack the amended petition by demurrer, but filed an answer in the nature of a general traverse. At the trial counsel for defendant objected to the introduction of any evidence on the ground "that the petition does not state a cause of action, because, under the common law, an action for personal injury did not survive the death of the injured party, and because the statute under which this is sought to be revived only revives a certain class of cases, and there is no plea or allegation in this petition that shows that the case falls within that class." The objection was overruled, defendant excepted, and the court proceeded with the trial.

The principal evidence introduced by plaintiff was the testimony of Armstrong given at the former trial. Plaintiff introduced as a witness the official stenographer of the circuit court who reported that trial, and he testified that he took the testimony in shorthand, and had with him a transcript of his notes. He was interrogated by counsel for defendant as follows: "You have no independent recollection of what Mr. Armstrong testified to, have you, Mr. Jetmore? A. Only some portions of it. Q. Of course, you sometimes make mistakes in transcribing? A. Very frequently, but not any more so than the rest of them. Q. But that is as near correct as usual under similar circumstances? A. Yes, sir; I presume it is. There may be some typographical errors or small errors, but I tried to make it correct. Q. You would not say on your oath that the transcript you have been shown is a literal reproduction of the testimony of Mr. Armstrong, would you? A. Pretty near. Q. But not absolutely so? A. Yes; I guess it is a transcript of the testimony, Mr. White. Of course, I do make mistakes, but I took his testimony, and I think I got it all." Plaintiff then attempted to have the witness testify from memory to the testimony given by Armstrong by using the transcript of his notes to refresh his memory, but this method of examination was not successful, and, over the objections of defendant, the court finally permitted plaintiff to introduce the transcript in evidence. The ground of the objection thus was stated by counsel: "Because it is hearsay evidence and because there is no provision, either of the common law or of the statutes, authorizing the reading of such a transcript as the evidence of a witness, and because it is incompetent, irrelevant, and immaterial."

The facts of the injury, as stated in the transcript, thus may be stated: Mr. Armstrong, a Presbyterian minister living at Stanberry, was attending a synod at Kansas City, and was on his way from a meeting of the synod to his lodgings at the time of his injury. He became a passenger on a southbound Rockhill car operated by defendant, intending to alight at Thirty-Fourth and Main streets, a regular stopping place. He was a stranger in Kansas City, and was not familiar with its streets. He sat in a rear seat next to the vestibule where the conductor stood when not engaged in collecting fares, and, when the car stopped at Thirty-Fourth street, he asked the conductor, who was in the vestibule, if that was Thirty-Fourth street, and, receiving an affirmative answer, arose from his seat, and proceeded to alight. He testified: "The door was ajar, and I stepped to the doorway and across the vestibule, and I had one foot on the step and the other extended to step to the pavement, and the car lurched forward and threw me to the pavement." The car was headed south, and Mr. Armstrong in going down the steps to the pavement was facing west. He states that he was not holding to a hand-hold, and that the sudden motion of the car threw him in such manner that he fell to the pavement with his head to the west and his body extended in an east and west direction. The principal injury he sustained was a fracture of the ball and socket joint in the left hip. The evidence of defendant is to the effect that Armstrong came out of the car to the vestibule, proceeded down the steps, and attempted to step to the pavement, all before the car had reached the stopping place, and while it was running at a speed of three or four miles per hour. The injury was very severe, and plaintiff suffered pain, and was lame from it to his death. He was in good health before the injury, and thereafter his health seemed steadily to decline until he died. The specific cause of his death is not shown, but a very strong inference arises from the evidence that the injury was the cause. The opposite inference also might be drawn and the issue of the causal relation of the injury to the death appears from all the evidence as a question of fact. At the request of plaintiff the jury were instructed: "* * * That if you believe and...