Torreyson v. United Rys. Co. of St. Louis

Decision Date06 June 1910
Citation144 Mo. App. 626,129 S.W. 409
PartiesTORREYSON v. UNITED RYS. CO. OF ST. LOUIS.
CourtMissouri Court of Appeals

In a passenger's action for injuries, the court instructed that if the jury found for plaintiff, in estimating damages they should consider, in connection with all the facts in evidence, such reasonable sums, if any, as they believed she had necessarily paid or become bound to pay for medical and hospital charges on account of her injuries, bodily pain, and mental suffering resulting therefrom; the character and extent of her injuries, and whether they were permanent, the extent, if any, to which she had been prevented from earning a livelihood, and, if they believed from the evidence that her injuries were reasonably certain to cause future pain and impair her ability to work in the future, they should also consider those facts and allow her such sum as under the evidence would reasonably compensate her for the injuries received. Another instruction required the jury to find that defendant started the car with a jerk before plaintiff could alight, causing her to be thrown therefrom and injured before finding for plaintiff. Held, that the jury could not have believed from the instruction that they could allow damages for any disease or physical disability not directly resulting from the injuries received from the accident.

2. TRIAL (§ 228)—INSTRUCTIONS—REQUISITES.

Instructions need not be drawn with such technical accuracy as to be wholly free from hypercritical objections, but are sufficient if the jury can correctly understand therefrom the rules of law applicable.

3. DAMAGES (§ 170)—PERSONAL INJURIES— ACTIONS—EVIDENCE.

In a street car passenger's action for personal injuries, testimony that plaintiff's parents depended upon her for support was not admissible, nor was testimony admissible that plaintiff took care of them, except as incidental to the fact that she was physically able to perform household duties.

4. DEPOSITIONS (§ 66)—PROCEEDINGS—PROCEEDINGS BEFORE SPECIAL COMMISSIONER — OBJECTIONS—NECESSITY.

Rev. St. 1899, § 2883 (Ann. St. 1906, p. 1661), gives a special commissioner, appointed by court to take depositions, power to determine all objections to testimony and admit and exclude it to the same extent as a circuit court could, and provides that, in case an objection to testimony is sustained, the aggrieved party may require the matter to be certified to the circuit court, and have the taking of depositions continued until its ruling is had upon the objection, and, if it overrules the objection, the commissioner shall proceed to take testimony upon receiving the certificate of that fact. Held, that one objecting to testimony taken before a commissioner should specify the objection and have it noted on the deposition so that the trial court could rule upon the objection, and, where no objection is made when the testimony is taken before the commissioner, it cannot be first objected to at trial.

5. EVIDENCE (§ 509)—OPINION EVIDENCE.

In a street car passenger's action for personal injuries, physicians could testify that plaintiff was suffering from a nervous condition due to a physical injury which was usually called "traumatic neurosis."

6. DAMAGES (§ 132)—PERSONAL INJURIES— EXCESSIVE DAMAGES.

Plaintiff, who was injured by being thrown from defendant's street car, was 44 years old, in good health, and earning from $35 to $40 a month for eight months in the year as a school teacher. Her injuries were permanent, and it was probable that she would never be able to earn anything in the future, and she had suffered great pain from her injuries. Held, that a verdict for $5,000 was not excessive.

7. TRIAL (§ 125)—ARGUMENT OF COUNSEL— APPEAL TO PASSION.

In a street car passenger's action for personal injuries, plaintiff's counsel stated in his opening argument that this was a day of great corporations and great millionaires, etc., and in his closing argument stated: That he did not criticise defendant's conductor, as he was only human. That the jury never saw a man whose careless conduct had laid a human being low by cutting off a leg or an arm and leaving him prostrated in the street, that could look upon the bleeding body and say, "Yes, I was wrong. I did it." That, when one realizes that he is blamable for the woes of another, he says: "Avaunt! Avaunt! Quit my sight! I am not responsible for it. She did it herself." That he would be more than human if he admitted that he injured this girl. That he could not look into her pale and quivering face and say that he did it. That he had nothing to say. That the jury knew that there might be even criminal responsibility for negligence which would make a man shield himself. That plaintiff had the respect and admiration of every one and could work eight or nine months and make something so as to enjoy her vacation; but now she was fatherless, motherless, helpless, penniless, and crippled to go down to the grave. Plaintiff was in the courtroom during trial propped up in an invalid's chair with pillows. Held, that the remarks of plaintiff's counsel were wholly improper as tending to prejudice the jury in plaintiff's favor.

8. APPEAL AND ERROR (§ 1060)—HARMLESS ERROR—IMPROPER ARGUMENT.

Error in making such remarks was reversible, as it could not be said that the verdict for plaintiff, which was only rendered by 9 of the 12 jurors, was not the result of such remarks.

9. TRIAL (§ 120)—ARGUMENT.

While counsel should be allowed to make all legitimate argument for his client, he should not be permitted to argue outside the testimony in order to procure a verdict unwarranted by the law and evidence.

Appeal from St. Louis Circuit Court; Matt. G. Reynolds, Judge.

Action by Margaret W. Torreyson against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Boyle & Priest, Morton Jourdan, and T. E. Francis, for appellant. Barclay, Fauntleroy & Cullen and L. P. Crigler, for respondent.

COX, J.

Action for damages for injuries alleged to have resulted to plaintiff by being thrown upon the pavement in the city of St. Louis, by reason of defendant starting its street car, upon which plaintiff was riding, with a jerk while she was in the act of alighting therefrom. The petition alleged that as a result of said fall she was painfully, seriously, and permanently injured; that her body was bruised, scarred, and injured, and her spine and back were sprained, wrenched, bruised, and injured; that her entire nervous system was disordered, shocked, and greatly injured; that all of her injuries are permanent and incurable; that as a result of said injuries she is now a cripple and will be for life; that she has suffered great bodily pain; alleges loss of time and disability to earn money in the future; the incurring of large expenses for medicine, hospital and nurse attention, etc. Trial was had before a jury, resulting in a verdict by nine jurors in plaintiff's favor, and her damages assessed at $5,000, and defendant has appealed.

The evidence on the part of plaintiff is that she was a resident of Martinsburg, Mo.; that her occupation was that of a school teacher; that she was single and unmarried, and 44 years of age; that she was earning from $35 to $40 per month; that on July 29, 1906, she was a passenger on the defendant's street car; that in attempting to alight therefrom, and while upon the steps of the car, the car was started with a sudden jerk, and she was thrown to the pavement and injured; that she was dazed and had a scalp wound in the back of her head; that she was first taken to the Buckingham Club, where Dr. Butler was called to attend her, and she was from there removed to the home of Charles Rawlings on Page avenue, and the next day thereafter was removed to St. Luke's Hospital, where she remained for nine weeks, and was then taken to the home of her brother at Laddonia, Mo., where she remained until the time of the trial. Dr. Butler and Dr. Fry attended her while she was at the hospital, and after being removed to Laddonia she was attended by Dr. Taylor and other physicians. Her testimony and that of other witnesses who were familiar with her condition was that prior to this accident she was in good health, taught school continuously, and performed household labor, and that since this injury she had been unable to walk without the aid of a crutch, and there was evidence tending to show that her nervous system was wrecked, and that this condition was probably permanent.

On the part of defendant, the conductor on the car at the time testified that the car had an entrance and steps in the middle; that at the time of the alleged accident the car had stopped for the purpose of permitting passengers to alight; that he was on the rear platform, leaning over the railing watching the passengers alight; that two ladies alighted from the steps at the middle of the car and had reached the curb; that he could see no other passengers proposing to alight at that time, and gave a signal, and the car started, and, immediately after the car started, the plaintiff in this case passed down the steps quickly and stepped off while the car was in motion and fell; that the car did not start with a jerk; and that the cause of plaintiff's fall was her attempting to get off while the car was in motion. Three passengers, who were on the platform with the conductor at the time, testified that the car started in the usual way without any noticeable jerk, and that they did not see the plaintiff alight, and as to whether she was attempting to alight while the car was standing, or did so after the car started, they had no knowlege. Physicians were appointed by the court to examine plaintiff. They did so, and, on behalf of defendant, testified that they found no indications of permanent injuries, and gave it as their opinion that the...

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