Turnbow v. Kansas City Railways Company
| Decision Date | 04 April 1919 |
| Parties | PAUL TURNBOW, by ORAH TURNBOW, His Next Friend, v. KANSAS CITY RAILWAYS COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Willard P. Hall, Judge.
Affirmed.
Clyde Taylor and L. T. Dryden for appellant.
(1) The appellant did not have a trial before a legal, qualified jury as provided by law. Sec. 7323, R. S. 1909; State v Austin, 183 Mo. 478; State v. Haney, 151 Mo.App. 251; Berry v. Trunk, 185 Mo.App. 495; Sec 30, Art. 2, Mo. Constitution. (2) The court should have granted a new trial in this case because of the misconduct of the juror Jos. Rothenberg in going to the scene of the accident during the course of the trial. Easley v. Mo Pac. Railway, 113 Mo. 236; 29 Cyc. 801, sec. 3. (3) The court erred in permitting respondent's counsel to offer certain evidence and interrogate the witness, on cross-examination, as to certain statements claimed to have been made by said witness in his deposition taken in the case. (a) This evidence was incompetent. Showen v. Ry. Co., 191 Mo.App. 292; Briscoe v. Laughlin, 161 Mo.App. 80; Ebert v. Street Railway Co., 174 Mo.App. 45; Van. Verth v. Loose, Wiles Cracker & Candy Co., 155 Mo.App. 299; Kitchen v. Railway Co., 59 Mo. 518; State v. Cooper, 83 Mo. 698; State v. Bowen, 247 Mo. 584; State v. Hughes, 71 Mo. 633; Sinclair v. Telephone Co., 195 S.W. 558. (b) The strictures placed upon appellant's counsel by the court was prejudicial to the rights of the appellant. Shepherd v. Brewer, 248 Mo. 148. (c) The respondent having offered the witness, as a witness in this case in the first trial, thereby made him his witness through the entire case and could not therefore impeach him. Dunn v. Dunnaker, 87 Mo. 597; Helling v. United Order of Honor, 29 Mo.App. 309; State to use of Guthrie v. Martin, 52 Mo.App. 511; King v. Ins. Co., 101 Mo.App. 163; Chandler v. Fleeman, 50 Mo. 239; Baker v. St. Ry. Co., 181 Mo.App. 392; Bigham v. Tinsley, 149 Mo.App. 467; Caldwell v. Bank, 100 Mo.App. 23; Spurgin Grocer Co. v. Frick, 73 Mo.App. 133; State Burke, 132 Mo. 372. (4) The court committed highly prejudicial error in permitting the stumps of respondents legs to be exhibited to the jury. Railway v. Clausen, 50 N.E. 680. (5) The court should have granted the appellant a continuance in this case and erred in overruling appellant's application therefor upon permitting respondent to amend his petition by interlineation, by inserting the following words, "That on account of said injuries other and further operations will be necessary to be performed on Paul Turnbow's legs." Sec. 1961, R. S. 1909. (6) The court erred in giving instruction P-1, at the instance of the respondent. Conway v. Met. St. Ry. Co., 161 Mo.App. 501; Beave v. Transit Co., 212 Mo. 331; Hufft v. Railroad, 222 Mo. 303. (7) The respondent's counsel made highly improper and prejudical statements in his closing argument to the jury, which were timely objected to by appellant and by the court overruled. Churchman v. Kansas City, 49 Mo.App. 366; Brown v. Railroad Co., 66 Mo. 588; Hayes v. The Town of Trenton, 108 Mo. 123; Haake v. Milling Co., 168 Mo.App. 177. (8) The verdict is grossly excessive and so mush so as to clearly show bias, prejudice and passion upon the part of the jury. Lessenden v. Mo. Pac. Railway, 238 Mo. 247; Yost v. Union Pacific Railway, 245 Mo. 219; Brady v. Railway Co., 206 Mo. 509; Farrar v. Met. St. Ry. Co., 249 Mo. 210; Applegate v. Railway, 252 Mo. 173; Campbell v. United Rys. Co., 243 Mo. 158; Waldhier p. Railway, 87 Mo. 48; Markey v. Railroad, 185 Mo. 364.
John N. Southern and Brewster, Kelly, Brewster & Buchholz for respondent.
(1) The jury that tried this cause was a legal jury under the statutes applicable thereto. Secs. 7323, 7324, R. S. 1909. The action of the juror in going to the scene of the accident during the course of the trial could not have prejudiced the rights of defendant. Hoffman v. Dunham, 202 S.W. 431. (2) Sherman was placed upon the witness stand by the defendant. The questions and answers read to him from his deposition on cross-examination contradicted his testimony given at the trial, and hence were competent. The court had a right to see that the trial was conducted in an intelligible manner and that several questions could be read to the witness at one time, without an objection being made between each question, in order that the witness and jurors might get the proper connection. (3) It was proper for the court to permit the stumps of plaintiff's legs to be exhibited to the jury. Lamport v. Gen. Accident Fire & Life Ins. Co., 197 S.W. 101. (4) The court should not have granted defendant a continuance upon plaintiff amending his petition, unless he was satisfied by the affidavit or otherwise that defendant was prejudiced by said amendment and that he could not safely proceed to trial. The granting of a continuance rests in the discretion of the court. Sec. 1961, R. S. 1909. (5) Instruction C-1 given by the court of its own motion was a correct statement of the law. (6) There were no improper or prejudicial statements contained in the closing argument of plaintiff's counsel. The argument objected to by the defendant was in response to an argument made by defendant's counsel. (7) The verdict is not excessive in view of the age of plaintiff at the time he was injured; the nature of the injuries he received, the present high cost of living and the low purchasing power of the medium of exchange. Hays v. Railway, 183 Mo.App. 608; Peaslee v. Transfer Co., 120 Minn. 352; Miller v. Hampton, 201 S.W. 854; City of Kennett v. Katz, 202 S.W. 558. (8) The verdict should have been for respondent on the testimony of the motorman for appellant. Simon v. Railway, 23 Mo. 78; Turnbow v. Dunham, et al., 272 Mo. 67. (9) The verdict was for the right party under all the testimony in the case and should be affirmed. Turnbow v. Dunham, 272 Mo. 53; Cytron v. Railway, 205 Mo. 720; Simon v. Railway Co., 231 Mo. 74; O'Keefe v. U. S. Ry. Co., 124 Mo.App. 624; R. S. 1909, sec. 2083.
Plaintiff, an infant boy, three years of age, sues by his next friend to recover for the loss of both feet.
The injury is alleged to have been caused by the negligence of the defendant in the operation of one of its street cars upon a street crossing in the city of Independence, Missouri.
Trial was had in the Circuit Court of Jackson County, at Independence, resulting in a verdict and judgment for plaintiff in the sum of $ 30,000. Defendant has duly appealed.
This is the second appeal. The opinion upon the first appeal is reported in 272 Mo. 53.
No attack is made upon the sufficiency of the evidence to support a recovery. The evidence in the main is the same as upon the former appeal and is set forth in 272 Mo. at page 53 et seq. It is therefore unnecessary to restate the same here.
Plaintiff's instruction No. P-1, which was given, is as follows:
"The court instructs the jury that if you believe and find from the evidence that on the 29th day of March, 1912, Paul Turnbow was a child about three years of age and that the said Paul Turnbow wandered or went upon Lexington Street in Independence, Missouri, and upon that part thereof east of Union Street and between the curb on the south line of Lexington Street and the car tracks of the defendant, and if you further believe and find from the evidence that at said time and place the street car in question was approaching a point opposite the place where said child was in said street and if the jury further believe and find from the evidence that said child approached said car and came in contact therewith and his feet and legs were run over by the wheels of the hind truck thereof and crushed and injured, so that it was necessary to amputate his feet, if you believe and find from the evidence that it was necessary to amputate them; and if the jury further believe and find from the evidence that the motorman operating said car saw, or, by the exercise of ordinary care, could have seen the said Paul Turnbow in said street and aproaching said car and in or approaching a place of imminent peril, if you believe and find from the evidence he was in said street and was approaching said car and approaching a place of imminent peril, in time, by the exercise of ordinary care and with reasonable safety to the passengers on the said car to have stopped said car and to have prevented the injuries to said Paul Turnbow; and if you further believe and find from the evidence that said motorman could reasonably have anticipated that said child would be likely to approach and come in contact with said car and be injured thereby; and if you further believe and find from the evidence that said motorman did not stop said car, after he saw, or by the exercise of ordinary care, could have seen said child in said street and approaching said car, if you believe and find from the evidence he was in said street and was approaching said car, and that said motorman saw, or by the exercise of ordinary care could have seen him there, and after he might reasonably have anticipated that said child would approach said car and be injured thereby, if you find that he should reasonably have so anticipated, but continued to run said car over and upon said tracks until the said Paul Turnbow was injured, as aforesaid; and if you further believe and find from the evidence that it was negligence upon the part of said motorman to so continue to run said car, if you believe and find from the evidence he did so continue to run it, and that the injuries to the said Paul Turnbow, if any, were caused by said negligence of said motorman, if any, in so running said car, then your verdict should be for the plaintiff and...
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