Van Cleve v. St. Louis, M. & S. E. R. Co.

• Decision Date: 02 April 1907
• Citation: 101 S.W. 632,124 Mo. App. 224
• Court: Missouri Court of Appeals
• Parties: VAN CLEVE v. ST. LOUIS, M. & S. E. R. CO.

101 S.W. 632

124 Mo. A. 224

VAN CLEVE v. ST. LOUIS, M. & S. E. R. CO.

St. Louis Court of Appeals. Missouri.

April 2, 1907.

1. DAMAGES—PERSONAL INJURIES—PLEADING AND PROOF.

Where a petition specifically stated the physical injuries plaintiff received as a result of an accident, evidence that she was at the time of the trial suffering from pulmonary tuberculosis, which was probably caused by the injury, is admissible, although not specially pleaded, when, in connection with other evidence as to her prior good health and freedom from lung trouble, it tends to show that the tuberculosis was a natural and probable result of the injury.

2. SAME.

The fact that a physician, who testified that an injured person was suffering from tuberculosis, which was probably caused by the injury, did not see the person until more than two years after the accident, did not render his testimony incompetent, where other evidence showed that hemorrhages took place immediately after the injury, and continued down to the day of the trial.

3. APPEAL—RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW—NECESSITY OF MOTION PRESENTING OBJECTION.

A question calling for an answer which was incompetent evidence was withdrawn upon objection and exception, but the answer was permitted to stand. Held, that the objecting party's objection and exception is not good upon appeal, where he did not move to strike out the answer.

4. DAMAGES—PERSONAL INJURIES—EVIDENCE —COMPETENCY.

Where, in an action for injuries, plaintiff sought to prove that she was suffering from tuberculosis as a result of her injury, evidence of a witness, who had not seen her for two years prior to her injury, that she was in good health when he knew her, is competent, since she was entitled to prove the condition of her health from the period of adolescence to the time of her injury.

5. NEGLIGENCE — INSTRUCTIONS — SUFFICIENCY—ERRONEOUS DEFINITION.

An instruction "that the term `negligence,' as used in the instruction, means the want of that care and prudence which a man of ordinary intelligence would exercise under all the circumstances of the situation," is erroneous, where the case is bottomed on negligence and defended on the ground of contributory negligence, since it does not correctly define the term.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Susie Van Cleve against the St. Louis, Memphis & Southeastern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Moses Whybark, for appellant.

BLAND, P. J.

This is the second appeal of this action. On the first one the judgment was reversed, and the cause remanded for retrial (107 Mo. App. 96, 80 S. W. 706). After the cause was remanded, respondent filed an amended petition containing two counts. The first count was abandoned on the trial, and only the cause of action stated in the second count was submitted to the jury, nine of whom signed and returned a verdict in plaintiff's favor for $1,250. The second count of the petition stated, in substance, that respondent, on November 19, 1902, took passage on one of appellant's trains at Yarbro, in the state of Arkansas, to be carried to Caruthersville, Mo., and paid her fare; that, on the arrival of the train at appellant's depot in the city of Caruthersville, the steps of the coach, in which respondent was riding, were covered with slippery mud and ice, and thereby rendered unsafe; that the train came to a full stop at the depot, and respondent with other passengers was requested by appellant's agent, in charge of the train, to alight; that while respondent was in the act of alighting, and was on the second step of the coach, "defendant carelessly and negligently jerked and backed said train suddenly and violently without giving any signal or warning whatever to this plaintiff, and by reason of the aforesaid slick mud and ice upon the steps aforesaid, from which plaintiff was attempting to alight from said passenger coach at the request of defendant, and by reason of the sudden and violent jerking and backing of said train, this plaintiff was thereby caused to violently slip and fall from the said steps of said train to and against the said depot platform and between the said steps and said platform; that by reason of said falling plaintiff then and there sustained several severe internal and external injuries, to wit, breaking of plaintiff's ribs and fracturing her breastbone, bruising and crushing her chest, injuring plaintiff's lungs, and otherwise bruising and wounding plaintiff; that by reason of the aforesaid injuries plaintiff suffered great bodily pain and mental anguish, great loss of blood, great and lasting pain, and loss of time, and was permanently injured, and was at great expense for medical services, to the damage of plaintiff in the sum of $15,000." The answer was a general denial and a plea of contributory negligence. The steps of the coach were muddy and slippery when respondent attempted to alight. The train was made up at Luxora, Ark., and consisted of freight cars and one passenger coach. There had been a rain the day and night before. The soil between Luxora and Yarbro is black and sticky when wet. Twenty-five or thirty passengers had boarded the train by the time it reached Caruthersville, and this fact may account for the muddy and slippery condition of the steps. Respondent testified that, when the train stopped at the depot, it came to a full stop, and the passengers were asked by appellant's agent to disembark, and several passengers preceded her and alighted from the train in safety; that she had a valise in one hand and was holding to the handrail with the other, when she stepped on the second step of the coach, and while in this position the train was suddenly and violently jerked and moved, causing her to be violently thrown against the depot platform, striking her breast against the edge of the platform with such great force as to render her unconscious. She was carried into the depot, where she had a copious hemorrhage of the lungs, and was afterwards conveyed to a hotel, where she remained in bed eight or ten days, having daily hemorrhages of the lungs. Respondent testified her ribs were fractured, her breastbone fractured or bent inward, her chest bruised and injured, and that she continued to have frequent hemorrhages of the lungs up to the day of the trial, had lost from 25 to 30 pounds in weight, was unable to sleep without being propped up in bed, and suffered constant pain; that before the injury she was strong and healthy, picked cotton and worked as a domestic servant, but since the injury she was unable to do any work whatever. Dr. G. W. Phipps, respondent's attending physician, testified that she had tuberculosis of the lungs, and, in his opinion, it was caused by the fall from appellant's car on November 19, 1902. There was no evidence tending to show respondent was guilty of contributory negligence, other...