Smart v. Kansas City

• Citation: 105 S.W. 709,208 Mo. 162
• Parties: SMART v. KANSAS CITY.
• Decision Date: 06 November 1907
• Court: Missouri Supreme Court

105 S.W. 709

208 Mo. 162

SMART v. KANSAS CITY.

Supreme Court of Missouri.

November 6, 1907.

1. APPEAL—REVIEW—SCOPE—RULING ON MOTION FOR NEW TRIAL.

Though on an order granting a new trial on a verdict for plaintiff, defendant has no occasion to appeal, if the record discloses grounds for a new trial, he is not precluded from showing by the record taken to the Supreme Court by plaintiff that he was entitled to a new trial, though the trial court specified only one, and that one perhaps not a sufficient, reason, for granting the new trial.

2. WITNESSES — COMPETENCY — PHYSICIANS — WAIVER OF PRIVILEGE.

By suing a city for personal injuries, plaintiff did not waive the disqualification, by the express terms of Rev. St. 1899, § 4659 [Ann. St. 1906, p. 2539], of her physician and surgeon to testify regarding information acquired from her while attending her in a professional capacity.

3. TRIAL—RECEPTION OF EVIDENCE—OFFER OF PROOF.

In a personal injury action, the exclusion of evidence to show that a certain physician was present when plaintiff's leg was amputated was proper, where there was no offer to prove or disprove by him any fact in issue.

4. WITNESSES—COMPETENCY—ASSISTANT HOSPITAL PHYSICIANS.

In a personal injury action against a city, assistant physicians and surgeons in the hospital where plaintiff was taken for treatment and the amputation of her leg, after the accident, and who assisted therein, were incompetent to testify respecting information acquired by them in attending her, under Rev. St. 1899, § 4659 [Ann. St. 1906, p. 2539], disqualifying a physician or surgeon to testify concerning any information acquired while attending a patient in a professional capacity.

5. SAME.

Rev. St. 1899, § 4659 [Ann. St. 1906, p. 2539], disqualifying physicians and surgeons to testify concerning information acquired while attending their patients in a professional capacity, applies whether the information is acquired from a poor or a pay patient, in a private residence or hospital, or from a charity patient in a public hospital.

6. SAME.

In a personal injury action, a physician who attended plaintiff when she was injured in a previous accident was incompetent to testify concerning information acquired by him in attending her, under Rev. St. 1899, § 4659 [Ann. St. 1906, p. 2539], disqualifying physicians to testify concerning information acquired from their patients in a professional capacity.

7. SAME.

Under Rev. St. 1899, § 4659 [Ann. St. 1906, p. 2539], disqualifying physicians and surgeons from testifying concerning information acquired from their patients in a professional capacity, in a personal injury action, a physician and surgeon rightfully in a hospital to which plaintiff was taken after a previous accident, and exercising authority over the patients, examining their persons, advising treatment, and removing patients from their wards to the operating room for clinical purposes, with the knowledge and consent of those in charge of the hospital, was incompetent to testify concerning information acquired in examining plaintiff, though he did not treat her and did not intend to.

8. SAME—HOSPITAL RECORDS.

Under Rev. St. 1899, § 4659 [Ann. St. 1906, p. 2539], disqualifying physicians from testifying concerning information acquired from patients in a professional way in a personal injury action, a physician in charge of hospital records, required by ordinance to be kept, was incompetent as a witness to prove a diagnosis of plaintiff's case before and after the accident, as shown by the records while she was a patient in the hospital.

9. EVIDENCE — EXPERT WITNESSES — EXAMINATION — HYPOTHETICAL QUESTIONS — OBJECTIONS.

Though ordinarily a hypothetical question asked a physician as an expert witness, based upon only part of the evidence—the part he heard— is objectionable, where the party producing him offers to read the testimony he has not heard, and the court sustains the adverse party's objection to the reading because it is immaterial, it is proper to allow the question to be answered.

10. SAME—CONCLUSION OF WITNESS.

Where, in a personal injury action, there was an issue whether the amputation of plaintiff's leg was rendered necessary by the accident or by disease, it was improper to allow a physician testifying as an expert to state the cause of the amputation. His testimony should have been limited to an inquiry whether the accident was sufficient to produce a condition necessitating amputation, and the jury left to determine what necessitated the amputation.

11. MUNICIPAL CORPORATIONS — DEFECTIVE SIDEWALK — INJURY TO PEDESTRIAN — ACTION — INSTRUCTION.

Where, in an action against a city for personal injury, caused by plaintiff falling over a coal hole projecting above the sidewalk, the evidence as to the distance of the projection was conflicting, plaintiff's evidence showing it to be two to four inches, and the city's not exceeding three-quarters of an inch, an instruction that if the city negligently allowed the coal hole lid and covering to remain in a dangerous condition for travel thereon, on account of it extending above the level of the sidewalk, etc., plaintiff could recover, was proper, and not objectionable as ignoring the distance of the projection.

12. TRIAL—INSTRUCTIONS—ERROR—ESTOPPEL.

One may not complain of an error in instructions given by the court, which he adopted in his own instructions.

13. MUNICIPAL CORPORATIONS — DEFECTIVE SIDEWALK — ACTION FOR PERSONAL INJURIES — INSTRUCTION.

In an action against a city for personal injury, caused by plaintiff falling over a coal hole projecting above a sidewalk, an instruction that if the city knew of the defect, or by exercising ordinary care could have known thereof in time to have had reasonable opportunity to have repaired it, or to have caused it to have been repaired, in time to have prevented the accident,

but neglected to do so, plaintiff could recover, was not objectionable as making it the city's duty to have repaired the sidewalk in time to have prevented the accident.

14. SAME—CITY'S LIABILITY.

If a city knew, or, in exercising ordinary care, would have known of the defect, if any, in a sidewalk, causing plaintiff's injury, in time to have had reasonable opportunity to have repaired it, or had reasonable opportunity to have caused it to have been repaired in time to have prevented the accident, and neglected to do so, it is liable.

15. DAMAGES — PERSONAL INJURY — AMPUTATION.

In an action against a city for personal injuries, caused by plaintiff falling on a defective sidewalk, the jury in estimating damages may consider the fact that her leg was amputated, if the amputation was caused by the fall, but not if tuberculosis of the knee caused the amputation.

16. SAME — AGGRAVATED AILMENTS.

In a personal injury action, plaintiff may recover for the aggravation of existing ailments.

Lamm and Graves, JJ., dissenting in part.

In Banc. Appeal from Circuit Court, Platte County; Alonzo D. Burnes, Judge.

Action by Stella Smart against Kansas City for personal injuries. From an order granting a new trial on a verdict for plaintiff, plaintiff appeals. Affirmed.

Henry J. Latshaw, for appellant. Edwin C. Meservey and Wm. A. Knotts, for respondent.

PER CURIAM.

The subjoined opinion written by WOODSON, J., in Division No. 1, is adopted as the opinion of the court in banc. All concur, except GRAVES, J., who concurs in result, but dissents as to paragraphs 2 and 3; and LAMM, J., who concurs in result in separate opinion in which GRAVES, J., concurs.

WOODSON, J.

This is a suit which was instituted by the plaintiff against defendant, in the circuit court of Jackson county, asking damages in the sum of $25,000 for personal injuries sustained by her through the alleged negligence of defendant in permitting a coal hole in one of its streets to become out of repair, and remain in a dangerous condition for pedestrians to pass over, and that while passing over it she stumbled and fell upon her knee and side, and, as a result, received an injury to her right knee, which resulted in the amputation of her right leg above the knee. As there are no complaints lodged against the pleadings, it will serve no good purpose in setting them out in this opinion.

The evidence tended to establish the following facts: On February 26, 1898, plaintiff was walking south on the west side of Wyandotte street in defendant city, with a bundle of clothing she had made, and was carrying them to the owner. In front of No. 1012 Wyandotte street there was a coal hole in the sidewalk, constructed of a metallic cylinder and a round lid. The evidence for plaintiff tended to show the cylinder extended from two to four inches above the stone sidewalk, while that of the defendant tended to show it extended above the surface of the walk not to exceed one-half to three-quarters of an inch; and all the evidence tended to show that it had been in the same condition for years that it was in on the day of the injury; that when she reached said coal hole she struck her right foot against it, which caused her to trip and fall, and thereby caused her knee to strike the metal cover, and greatly bruise and injure it, and pushed the kneecap to one side—toward the inner side of her limb; that bystanders assisted her to a passing buggy, and she was driven to her home, where she remained a few days, where the limb was examined by a massagist, who was not admitted to practice, and her knee was found to be bruised and very much swollen, and the kneecap dislocated, as before stated, all of which caused her to suffer much pain; that within a few days she was taken to the city hospital, which we gather from the record belonged to the city, though there is no positive evidence of that fact in this record; there she received proper care and medical treatment, but continued to grow worse for two months, when it became necessary, in order to save her life, to amputate her right...