Thomas v. Metropolitan Street Railway Company

• Decision Date: 04 March 1907
• Parties: VINNIE A. THOMAS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

100 S.W. 1121

125 Mo.App. 131

VINNIE A. THOMAS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

March 4, 1907

Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.

REVERSED AND REMANDED.

John H Lucas, Charles A. Loomis and Ben F. White for appellant.

(1) It was error to permit witness Dr. Beattie to give his opinion as to the cause of the injury when the question did not embrace all the facts which should have been included, the particular objection being that it did not mention the physical condition of plaintiff at the time of the accident. Turner v. Har, 114 Mo. 345; Senn v Railroad, 108 Mo. 143; Zin v. Railroad, 109 Mo 142; Smith v. Railroad, 119 Mo. 246; Russ v Railroad, 112 Mo. 45; Smart v. Kansas City, 91 Mo.App. 586; Mammersburg v. Railroad, 62 Mo.App. 563. (2) For the same reasons it was error to permit witness Dr. C. Lester Hall to state whether or not the "fall" produced the injury complained of. (3) There was certainly error in the ruling of the court in refusing to permit witness Dr. Schauffler to answer the hypothetical question in regard to this injury. (4) The court erred in the admission of the testimony of plaintiff's witness, Dr. Beattie, and in the cross-examination of defendant's expert witnesses, in permitting them to state that it was their opinion that the accident complained of caused the injury sued for. This was a question solely for the jury. Taylor v. Railroad, 185 Mo. 239; Gutridge v. Railroad, 94 Mo. 472; Bottger v. Iron Co., 136 Mo. 536; Langston v. Railroad, 147 Mo. 465; Glasgow v. Railroad, 191 Mo. 358.

E. Wright Taylor for respondent.

(1) The objections made by defendant were not sufficiently specific to inform the court and plaintiff of the real point in the objection. R. S. 1899; sec. 864; O'Neil v. Kansas City, 178 Mo. 91; Williams v. Dittenhoefer, 188 Mo. 141; Bragg v. Railway, 192 Mo. 342. Even if the trial court did err, yet that error was harmless. State ex rel. v. Stone, 111 Mo.App. 364; Schafstette v. Railroad, 175 Mo. 142; R. S. 1899, sec. 865; Daggs v. Smith, 193 Mo. 502; Logan v. Field, 192 Mo. 70, and cases cited; Swope v. Ward, 185 Mo. 329; Caplin v. Transit Co., 114 Mo.App. 264; Gardner v. Railway, 135 Mo. 90; White v. Insurance Co., 97 Mo.App. 590; Hester v. Packing Co., 95 Mo.App. 16; Bradley v. Spickardsville, 90 Mo. App., 423; Wilkinson v. Metropolitan Ins. Co., 54 Mo.App. 665; Powers v. Kansas City, 56 Mo.App. 577; Nelson v. Railway, 88 S.W. 1119. (3) The defendant should have asked the court for an instruction covering its theory of the expert medical evidence. Ashby v. Gravel Road Co., 111 Mo.App. 84, and cases cited; Harmon v. Donahoe, 153 Mo. 274; Browning v. Railway, 124 Mo. 72; Longan v. Weltmer, 180 Mo. 335; Parman v. Kansas City, 105 Mo.App. 693.

OPINION

BROADDUS, P. J.

The plaintiff's suit is to recover damages for an injury alleged to have occurred on the first day of November, 1902. She alleges in her petition that on said day she was a passenger on one of defendant's cable cars, her destination being at the intersection of Ninth and Walnut streets, Kansas City, Missouri; that when the car arrived at the point named that it stopped to let off and take on passengers; that while she was in the act of alighting the defendant's agents in charge caused the car to suddenly start forward which had the effect to violently throw her to the ground whereby she was injured. She alleges that the injuries caused "an acute displacement of plaintiff's uterus, and plaintiff's uterus was affected with great sensitiveness and soreness, and all the pelvic and female organs of plaintiff were made sensitive and sore;" and "plaintiff's menstrual periods ceasing and becoming deranged, and plaintiff's nervous system has become prostrated, causing nervous prostration, said injuries being permanent."

The evidence tends to support her allegations as to the manner in which she was injured. The chief contention of the appellant is that the court committed error in receiving and rejecting evidence in reference to the question of her injury and its extent.

The testimony developed the fact that the plaintiff received a similar injury in November, 1899, in alighting from one of defendant's cars, for which she claimed and received damages and that injury was referred to in the examination of witnesses in the trial of this case. Dr. Beattie was called as a witness, who was familiar with plaintiff's condition, and who had been called to attend her on the third day of November, two days after her injury, and who afterwards treated her. He was asked the following question by the plaintiff; "Let me ask you, doctor, that you assume now that it will be proven to the satisfaction of the jury, that on the first day of November, 1902, Miss Thomas was thrown from a street car violently on her feet, could that have brought about the condition you found on the third of November?" Inquiry: "That shock?" The objection to the question was that, "it assumes facts to be true which have not been proven; it does not state all of the facts proven in evidence; does not state all of the facts which are necessary for the witness to know and to take into consideration in expressing an opinion on the question; because it calls for the opinion and conclusion of the witness upon an issue of fact which is not a proper subject of opinion evidence, and which is an issue of fact for the jury to try and determine."

The objection that the question calls for a conclusion was not well taken. On the contrary, it only calls for an opinion, which is the object in invoking expert testimony. The only plausible objection to the question perhaps lies in the omission to include the physical condition of the plaintiff at the time. Although in the after progress of the case there was evidence tending to show that she had not entirely recovered from a previous injury, the evidence up to this period was to the effect that she was in good health and that she did not feel any bad effect from the previous injury. Although the question should have included the fact that she was in apparently good health at least, yet we think in the absence of any evidence that she was not the jury and the court had a right to assume that she was in a normal condition. There is another reason why the objection should not have been sustained. It was made too late. At the close of the question, witness was asked as follows: "That shock?" The plaintiff's counsel said, "Yes." Then the witness in answer to the question said, "Yes." The defendant then made its objection. It is a rule of practice that when a party, without objection, awaits to see what answer a witness will make to the question, thus giving himself the benefit of the answer if it is favorable to his interest, he will not be allowed afterwards to object on the ground that the question is incompetent, or for any other cause, the answer turning out to be unfavorable. The question was then repeated and the witness answered, "I think it might have brought about that condition."

A similar question was put to Dr. Lester Hall by plaintiff except he was asked whether her condition resulted from a shock? The question was improper, as it asked for a conclusion and not for an opinion. But the doctor answered that, "It would be very hard to say whether it did or did not produce the condition, which was found. I know that a fall, a heavy jar, fall, throwing down a falling on the feet, might produce displacement of the womb, but whether it would produce inflammation and adhesion is another question I cannot...