Smith v. United Rys. Co.

• Citation: 227 S.W. 866
• Decision Date: 08 February 1921
• Docket Number: No. 16404.,16404.
• Parties: SMITH v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Court of Appeal of Missouri (US)

227 S.W. 866

SMITH v. UNITED RYS. CO. OF ST. LOUIS.

No. 16404.

St. Louis Court of Appeals. Missouri.

February 8, 1921.

Rehearing Denied February 24, 1921.

Appeal from St. Louis Circuit Court; Samuel Rosenfeld, Judge.

"Not to be officially published."

Action by Edward Smith against the United Railways Company of St. Louis. From judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

Charles W. Bates and T. E. Francis, both of St. Louis, for appellant.

J. M. Feigenbaum, of St. Louis, for respondent.

BECKER, J.

This is a suit for damages for personal injuries alleged to have been sustained by plaintiff while a passenger on one of the defendant's street cars. Plaintiff obtained judgment for $3,000, and defendant appeals.

The case is predicated upon the claim that while plaintiff was undertaking to alight from a pay as you enter car, equipped with sliding doors and a step which automatically raised as the doors closed, upon which plaintiff was a passenger, the car prematurely started, the doors closed, and the step raised causing one of the fingers of plaintiff's right hand to become caught between the doors and mashed. It is further alleged that —

"As a direct and immediate result of the injury to said finger blood poisoning set in, infecting the whole of his right hand and infecting his body as a whole."

Defendant's answer was a general denial coupled with a plea that —

"Whatever injuries, if any, plaintiff sustained were caused by his own carelessness and negligence in allowing himself to become exposed to a poison, the precise nature of which is at the present time unknown to the defendant."

I. It is here urged that the learned trial court committed prejudicial error in admitting, over proper objection, testimony, relative to special damages, not pleaded. This point is well taken.

It appears from the record that during the course of the trial plaintiff adduced as a witness one of the physicians who had treated him for his alleged injuries. This witness testified that for some ten days or two weeks he treated plaintiff for an infected finger; that thereafter he did not see plaintiff again "until he developed his abdominal wrong." Defendant moved to strike out the quoted part of this answer as not responsive to the question, and on the further ground that there was no allegation of damages of that character pleaded in the petition. Defendant's motion having been overruled, and an exception saved, the witness was then permitted to tell the jury that —

"Following the infection of the arm he (plaintiff) developed the metastatic infection of the portal circulation, or circulation of the liver."

Here again the record shows that counsel for respondent moved to strike out the answer on the ground that no injury of that kind was pleaded in the petition, but was again overruled, and an exception saved. The witness thereupon proceeded as though in answer to the last question, and said:

"I remember the man coming in suffering with acute abdominal pain. I was surprised he didn't come earlier, for the abdomen was intensely distended with fluid and he had a marked pain over the liver and gall bladder region."

Again defendant's motion to strike out was overruled and an exception noted.

This witness further testified, after examining his office record, that when plaintiff came to him complaining of his "abdominal wrong," it was three weeks after the witness had first treated plaintiff for an infected...