Taylor v. Grand Ave. Ry. Co.

• Citation: 185 Mo. 239,84 S.W. 873
• Parties: TAYLOR et al. v. GRAND AVE. RY. CO.
• Decision Date: 22 December 1904
• Court: United States State Supreme Court of Missouri

84 S.W. 873

185 Mo. 239

TAYLOR et al. v. GRAND AVE. RY. CO.

Supreme Court of Missouri, Division No. 1.

December 22, 1904.

STREET RAILROADS—COLLISION AT CROSSING— INJURY TO PASSENGER—PLEADING AND PROOF —VARIANCE—EXPERT EVIDENCE — EXCESSIVE DAMAGES.

1. In an action by a passenger for injuries in a collision between an electric car and a cable car at a crossing, where the negligence alleged in the petition was the failure of the flagman to give "such signals as would have enabled the gripman and motorman, by the use of ordinary care, to have avoided said collision," and the evidence showed that the flagman gave both the gripman and motorman the signal to proceed at the same time, there was no material variance.

2. Where the defense in an action for personal injuries is that the paralysis complained of by plaintiff is the result of some other cause than the accident, it is error to permit medical experts to testify that they attribute plaintiff's condition to the accident.

3. In an action for personal injuries, evidence considered, and held that a judgment for $5,500 damages is excessive.

Appeal from Circuit Court, Jackson County; E. P. Gates, Judge.

Action for personal injuries by Augusta Taylor and husband against the Grand Avenue Railway Company and another. From a judgment for plaintiffs, defendant appeals. Reversed.

John H. Lucas, for appellant. L. H. Waters, for respondents.

MARSHALL, J.

This is an action for $10,000 damages for personal injuries alleged to have been received by the plaintiff, Augusta Taylor, on September 27, 1892, by reason of a collision at Fifth and Walnut streets, in Kansas City, between a cable car of the defendant and an electric car of the North-East Street Railway Company. This is the second appeal in the case. Originally the suit was against both the defendant, the Grand Avenue Railway Company, and the North-East Street Railway Company. The case was first tried on June 2, 1893, and resulted in a verdict for the defendant the Grand Avenue Railway Company and against the North-East Street Railway Company for $1,250. The plaintiff and the North-East Street Railway Company filed motions for new trial. The trial court sustained said motions, and the defendant the Grand Avenue Railway Company appealed to this court, where the judgment was affirmed. 137 Mo. 363, 39 S. W. 88. A second trial was had in the circuit court on January 3, 1901, when the plaintiff dismissed the case as to the North-East Street Railway Company, and a verdict was rendered against the defendant the Grand Avenue Railway Company for $7,000. The trial court ordered a remittitur of $1,500, which being done, judgment was entered for $5,500, and the defendant appealed to this court.

For the sake of brevity, the defendant, the Grand Avenue Railway Company, will hereinafter be referred to as the "Cable Company," and the North-East Street Railway Company as the "Electric Company." The cable and electric companies are street railroad companies, and operate lines of street cars in Kansas City, each having double tracks, which intersect at Fifth and Walnut streets. Under an ordinance of the city said companies are required to and do maintain a common flagman at said intersection, each company paying one-half of the hire of said flagman; and the trains of the two companies are moved at the said intersection upon signals from the flagman. The grade of Fifth street at said intersection is level, while the grade of Walnut street on both sides of Fifth street slopes sharply toward the north. By reason of these facts, the custom of operating the trains of the two companies at said intersection was and is that the cable cars going north on the east side of Walnut street have the right of way over the electric cars, while the electric cars have the right of way over the cable cars going south on the west side of Walnut street, but all cars cross the intersection as aforesaid only upon signals of the flagman. On the day of the accident, September 27, 1892, about 5 o'clock p. m., the plaintiff was a passenger for hire on the electric car going west on Fifth street. When the electric car reached the said intersection, a cable car was just crossing the intersection going north. The uncontradicted evidence is that the flagman was standing in the center of the two streets, and that he first gave a signal to the cable car coming south on Walnut street to come on, and then immediately gave a like signal to the electric car on Fifth street going west. Both cars proceeded to obey the signal, when the flagman at once raised both hands, as a signal for both cars to stop. But it was too late, and before the cars could be stopped the cars collided. The motorman of the electric car applied the brakes and reversed the current, but despite all efforts, the electric car struck the cable car on its side less than one-third of its length from its front. The controlling rod on the electric car was bent, the wire cable for reversing the current was broken, and the front wheels of the electric car were thrown about six inches off the track and towards the north, although no glasses in the windows or doors of the electric car were broken. The only injury to the cable car was to tear off a board on the outside of the car. The electric car was a small, light car, and with 22 passengers on it was crowded, all the seats being taken, and persons standing in the aisles and on the front and rear platforms.

The plaintiff says that the electric car did not check up when approaching the intersection, but "was running like lightning" —faster than she ever knew it to run.

Edward Moon, a witness for the plaintiff, said he was riding on the front platform of the electric car, and that he did not notice any checking of the speed of the car as it approached the intersection. On the other hand, James W. Vickers, the motorman on the electric car, who was also a witness for the plaintiff, said that when he approached the intersection he checked the speed of the electric car, so that when he reached a point 40 or 50 feet from the intersection the car was almost at a standstill; and that, after the cable car going north had passed the intersection, the flagman gave him the signal to come on, so he applied the power and proceeded, and when within 15 or 20 feet of the intersection he saw the cable car going south also approaching; that he had not seen the cable car going south any sooner because the cable car going north, that had just passed the intersection, obstructed his view.

F. W. McDonald, the general manager of the electric company, who was a witness for the plaintiff, testified that he was standing on the rear platform of the electric car, with his back towards the front of the `car, and that the electric car was brought almost, if not entirely, to a standstill when it approached the intersection; that it then started forward; and that the impact of the collision was so slight that he could scarcely feel the shock at all, and that it only threw his back slightly against the back of the car.

The plaintiff testified that she was seated on the north side of the electric car, in the third seat from the front; that she saw the cable car approaching, and saw that there would be a collision; that she raised partly from her seat, and exclaimed, "Oh!" and that the collision then occurred, and she was thrown on the "bias," and fell onto the floor of the car, striking her left side, as she fell, against a seat or the stove on the other side of the car; that she got up, and was thrown down backwards a second time on the floor of the car, and rendered insensible; that she don't know how she got out of the car, but that when she recovered her senses she was taken to her home in a carriage. She says no bones were broken; that there were no visible marks of any bruises on her body except on her lower limbs; that her side was sore; that she suffers constant pain in her back, in the back of her head, in her temples, in her left side; that she spits blood; that her lower limbs seem numb; that she has severe cramps in her toes, and cannot use them; that "I have to drag my left limb, and my right limb goes down kind of like it was sleeping." She further said on the second trial that she was confined to her bed from the time she was hurt, on September 27, 1892, for one year, whereas on the first trial, had on June 2, 1893, she testified that she was confined to her bed from September 27th to the following New Year's Day. Moreover, on the second trial she testified that she moved her residence about March, 1893, and again in June, 1893, and the record shows that she was present in court and testified on the first trial, which was on June 2, 1893. Again, she testified on the second trial that Dr. Park McDonald came to see her every day for one year after she was hurt, and afterwards came four or five times a week; whereas Dr. McDonald says he went to see her every day for two or three months after she was hurt, and after that he went two or three times a week for the next two years, and after that he could not say how often he went.

Touching the nature and extent of her injuries the testimony is most extraordinary. On the first trial of the case, on June 2, 1893, Dr. McDonald said that there were no bones broken; no bruises apparent, only a slight abrasion on the outside of the lower part of her left leg and a red spot on her forehead, which did not amount to a break of the skin; she complained of pain in her back and in her head; that he prescribed opiates to relieve the pain and general tonics to build up her system; that he advised her to take exercise, but she said she could not walk or put her feet to the floor; that there was no paralysis or indications of paralysis, but that her trouble was "purely nervous." Whereas on the second trial of the case, on January 3, 1901, he testified that he did not know what he had testified to on the first trial, and when his testimony...