Stauffer v. Metropolitan St. Ry. Co.

• Decision Date: 31 May 1912
• Parties: STAUFFER v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

147 S.W. 1032

STAUFFER v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 31, 1912.

1. CARRIERS (§ 320)—INJURIES TO PASSENGERS— ACTIONS—EVIDENCE.

Evidence in a passenger's action for injuries sustained in a collision with a steam roller held to sufficiently show defendant's negligence as against demurrers thereto.

2. TRIAL (§ 156)—DEMURRER TO EVIDENCE— HEARING AND DETERMINATION.

Where, after a demurrer to the evidence at the close of plaintiff's testimony in chief, defendant puts in its own case, the final demurrer searches all the testimony to see if plaintiff's case was not aided by defendant's proof.

3. TRIAL (§ 156)—DEMURRER TO EVIDENCE— HEARING AND DETERMINATION.

A demurrer to plaintiff's evidence admits it as true, whether contradicted or not, if not impossible or beyond reason, and allows to plaintiff the benefit of every reasonable inference arising on the proof; defendant's testimony where contradicted being treated as untrue; questions of the weight of the testimony and credibility of the witnesses and the reconciliation of contradictions being for the jury.

4. CARRIERS (§ 280)—INJURIES TO PASSENGERS —CARE REQUIRED OF CARRIER.

While a carrier of passengers is not an insurer, it is its contractual and legal duty to carry its passengers safely, and it is bound to exercise a very high degree of care.

5. DAMAGES (§ 132)—PERSONAL INJURIES— EXCESSIVENESS.

Plaintiff, a healthy, robust girl of steady nerves and good spirits, 26 years old and earning her own living, was injured in a street car collision, receiving bruises on her head and hip, womb trouble developing from the injuries. She became nervous and depressed, and was unable to work. Shortly after the accident, it was discovered that she was suffering from an aneurism in the aorta, which would result in death under any strong exertion or intense excitement, and made childbirth impossible. There was evidence that this might have been caused by the shock of the collision, and no evidence of any other cause. From that time she was never entirely out of a physician's care. Held, that a verdict of $10,275 was not excessive.

6. TRIAL (§ 412)—ERROR—CURE BY INSTRUCTIONS TO DISREGARD.

In the absence of any exceptional circumstances, the withdrawal of alleged erroneous evidence by an instruction cured the error in its admission, especially where it was not plain why the testimony was not admissible.

7. WITNESSES (§ 275)—CROSS-EXAMINATION OF PARTY—PREVIOUS TESTIMONY.

In a passenger's action for injuries sustained in a street car collision, on the taking of plaintiff's deposition before trial, she refused under advice of counsel to give the name of her escort at the time of the accident. On the trial, the deposition was admitted in evidence, and, after she had stated that she remembered what she said when the deposition was taken, she was asked if she remembered refusing to give her escort's name, to which an objection was sustained. The testimony showed that some of defendant's witnesses knew his name, that the conductor or motorman took the names of some of the witnesses at the time of the accident, and there was nothing to show that defendant did not know his name, and it appeared that he was in court until he was wanted by plaintiff, when he disappeared. Held no error, the question objected to being unnecessary, since plaintiff had stated that she remembered what she said, and the deposition itself showed the refusal, and, if it was intended to follow this question with another as to why she refused, the deposition showed that it was done by advice of counsel, and, in any event, defendant was not injured by the exclusion of the question.

8. APPEAL AND ERROR (§ 301)—RESERVATION OF GROUNDS FOR REVIEW—MOTIONS FOR NEW TRIAL.

Where alleged improper remarks of counsel in his argument to the jury were not referred to by the motion for a new trial, they cannot be reviewed on appeal.

9. APPEAL AND ERROR (§ 207)—RESERVATION OF GROUNDS OF REVIEW—EXCEPTIONS —NECESSITY.

Under Rev. St. 1909, § 2081, providing that exceptions shall not be taken on appeal to proceedings of the circuit court not expressly decided by that court, improper remarks of counsel in his argument cannot be reviewed, where no objection was made or exception taken.

10. TRIAL (§ 133)—ARGUMENT OF COUNSEL— IMPROPER REMARKS—CURE.

Where on objection being made the court told the jury that remarks of counsel were improper and should be disregarded, there was no error.

11. CARRIERS (§ 314)—PASSENGER'S ACTION FOR INJURIES—PRESUMPTIONS AND BURDEN OF PROOF.

An allegation of a petition in a passenger's action for injuries that a street car was negligently run into a steam roller and negligently caused to collide with it constitutes general charge of negligence and not a specific charge, since it does not specify the negligence, but merely its result, and hence on the trial the doctrine of res ipsa loquitur applies.

12. CARRIERS (§ 321)—PASSENGER'S ACTION FOR INJURIES—INSTRUCTIONS.

In a passenger's action for injuries, where the petition alleged that defendant's servants negligently ran a street car on which plaintiff was a passenger into a steam roller, and that the car was negligently caused to collide with the roller, an instruction authorizing a recovery if after they saw the roller defendant's servants negligently failed to stop the car was not improper, as going outside the issues and invoking the "last chance" or humanity doctrine; the negligence charged and that submitted by the instruction being the same, although not stated in the same words.

13. CARRIERS (§ 321)—PASSENGER'S ACTION FOR INJURIES—INSTRUCTIONS.

In a passenger's action for injuries, an instruction that, if defendant accepted plaintiff as a passenger, it was bound to operate the car with the highest practicable degree of care of a very prudent person engaged in a like business in view of all the facts and circumstances shown, and was liable if its agents or servants were guilty of even slight negligence in the operation of the car, if such negligence caused the injury, was not improper as being too general and imposing too high a degree of care on defendant, especially in connection with other instructions given at defendant's request applying the law to the facts, and placing the burden on plaintiff to prove negligence, thus ignoring the doctrine of res ipsa loquitur.

14. TRIAL (§ 253)—INSTRUCTIONS—EXCLUDING OR IGNORING ISSUES.

The rule that an instruction stating the issues and directing a verdict in the event of a favorable finding for plaintiff on those issues must state all the issues does not apply to an instruction merely covering the measure of damages.

15. TRIAL (§ 253)—INSTRUCTIONS—EXCLUDING OR IGNORING DEFENSES.

In an instruction that plaintiff claimed she was injured while a passenger on defendant's car in a collision with a steam roller, and that, if the jury found for plaintiff, they should award damages as specified, the reference to what plaintiff claimed was surplusage, but could not have injured defendant although it made no reference to negligence, since the burden was on it to disprove negligence, and an instruction not directing a verdict may omit reference to defenses.

16. TRIAL (§ 192)—INSTRUCTIONS—ASSUMPTION AS TO FACTS—UNCONTROVERTED FACTS.

Where both parties proceeded on the theory that plaintiff was injured in a collision of a street car with a steam roller, it was not error to assume this as a fact in giving instructions.

17. APPEAL AND ERROR (§ 1028)—REVIEW— HARMLESS ERROR.

Where plaintiff had a meritorious case under the express provisions of Rev. St. 1909, §§ 1850, 2082, a judgment in her favor should not be reversed unless errors materially affecting the merits of the action or affecting the substantial rights of the defendant can be pointed out.

18. TRIAL (§ 244) — INSTRUCTIONS — PROMINENCE OF PARTICULAR MATTERS.

On the trial of an action, plaintiff, a young woman mortally injured in a street car collision, was overcome with weeping and hysteria, and forced to leave the stand. The trial was adjourned until the following morning, when the court gave defendant the option of continuing the case, which it declined. Held, that there was no error in refusing an instruction singling out this incident, and admonishing the jury from being in any way influenced by it.

19. CARRIERS (§ 321)—INJURIES TO PASSENGER— ACTIONS—INSTRUCTIONS.

Where a 15-ton steam roller was seen crossing a street car track very slowly 200 feet in front of an approaching car, it was the motorman's duty to exercise a high degree of care for the protection of the passengers; and an instruction that he might assume that it would stay off or get off the track before the car reached it was properly denied.

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

Action by Rose Stauffer against the Metropolitan Street Railway Company, in which Peter Stauffer, administrator, was substituted as plaintiff. From a judgment for plaintiff, defendant appeals. Affirmed.

Ben T. Hardin and John H. Lucas, for appellant. McCune, Harding, Brown & Murphy, for respondent.

LAMM, J.

Rose Stauffer had judgment against defendant in the Jackson circuit court for $10,275. Defendant appealed and plaintiff died. By stipulation here the cause was revived in the name of Peter Stauffer, her administrator.

We are asked to reverse her judgment for error, to-wit: In refusing a demurrer at the close of plaintiff's evidence and again at the close of the whole case. In allowing an excessive verdict to stand; in permitting evidence from Hill, an expert; in refusing to permit counsel to cross-examine plaintiff about her refusal to answer certain questions propounded to her at the time her deposition was taken; in the disposition made of certain objections to remarks of one of plaintiff's counsel in closing to the jury; in refusing and giving instructions.

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