Gain v. Dorward

357 S.W.2d 193, 1962 Mo. App. LEXIS 757
CourtMissouri Court of Appeals
DecidedApril 2, 1962
DocketNo. 23438
StatusPublished
Cited by3 cases

This text of 357 S.W.2d 193 (Gain v. Dorward) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gain v. Dorward, 357 S.W.2d 193, 1962 Mo. App. LEXIS 757 (Mo. Ct. App. 1962).

Opinion

BROADDUS, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment for $10,000 and defendant has appealed.

On May 19, 1955, about 10:45 A.M. plaintiff was on the northeast corner of the intersection of 75th and Troost in Kansas City, Missouri, on the way to the office of her dentist for some routine dental work. Troost Avenue runs north and south and has four traffic lanes and traffic at this intersection is controlled by automatic electric signal lights. The day was clear and bright and the weather was warm. The streets were paved with cement and the pavement was dry.

[194]*194As plaintiff reached the aforesaid position the traffic light for east and west traffic on 75th Street was red and she waited for the light to change. She saw one automobile standing at the southwest corner of said intersection near the south curb waiting for the light to change. Said automobile was giving no signal of an intention to make a left turn. When the traffic light turned green for east and west traffic plaintiff started walking west in the pedestrian lane on the north side of 75th Street. As she was approaching the center of Troost Avenue an automobile was coming south very fast in the traffic lane for southbound traffic first west of the center line and she gave attention to that automobile.

As she reached the center of the traffic lane immediately east of the center line of Troost Avenue the defendant made a left turn to go north on Troost in the lane next to the center. Defendant did not see plaintiff until almost upon her and his car struck her with such force that it knocked her out of the pedestrian lane and prone to the ground five feet north of the north line of the pedestrian lane in which she had been walking. Defendant sounded no horn or other warning of his approach. Defendant’s automobile was moving slowly and there was nothing to prevent him stopping or swerving to the right as the east traffic lane was clear. His brakes, steering gear and tires were in good condition and he could stop his car under the circumstances in four feet.

We will set forth the evidence relating to the nature and extent of the injuries sustained by plaintiff as we discuss defendant’s third contention—that the verdict is excessive.

Defendant’s first contention is that the court erred in giving on behalf of plaintiff Instruction No. 3, which dealt with the measure of damages. It reads as follows :

“The Court instructs the jury that if you find the issues for plaintiff and against the defendant on the evidence and under the instructions of the Court, you should assess her damages at such sum as you believe and find from the evidence will fairly and reasonably compensate her for the injuries, if any, sustained by her as shown by the evidence; and in assessing such damages you may take into consideration the physical injury, if any, inflicted; the bodily pain, if any, and mental anguish, if any, which she has endured and suffered and which she is reasonably certain to endure and suffer in the future; the character and extent of her injuries and disabilities, if any, and whether they are temporary or permanent.”

Defendant urges that the instruction is too broad, and does not limit and confine the damages for the injuries sustained by plaintiff as a direct result of the automobile accident of May 19, 1955. Similar instructions have been uniformly approved by the decisions of the appellate courts of this State. Among those many cases are Oldham v. Standard Oil-Co., 15 S.W.2d 899 (Mo.App.); Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903. Those authorities hold that an instruction on the measure of damages in a personal injury case is not erroneous because it is general if it does not misstate the law, and that, if defendant considers it might be misleading, it is his duty to ask instructions excluding elements of damage not proper to be considered, and otherwise limiting the damages to be allowed.

The two cases cited by defendant are not in point. The first was a contract action with no evidence to support the instruction given. The second was a' fraud case which did not limit the damages to the difference in the value of the property at the time purchased and the value it would have had had the representation been true.

Defendant also contends that the trial court erred in overruling his objec[195]*195tions to the following remarks made by plaintiff’s counsel in his closing argument.

“ * * ⅜ and she is going to have this tooth trouble. Certainly until they have to be pulled and artificial teeth are put in. And I want to say to you that artificial teeth are something to be reckoned with. I remember one time in a lawsuit here in Kansas City, the complaint was made that they allowed the lady too much money.
“Mr. Russell: Object to this form or argument.
“Mr. Raymond: It is an anecdote.
“Mr. Russell: I fail to see the relevancy to that.
“The Court: I don’t know what he is going to say.
“Mr. Russell: I think the mere mention of it is prejudicial.
“Mr. Raymond: I don’t know who wrote the opinion for the Court of Appeals for cracking a set of plates, and I know the problem, to him who contends store teeth are as good as natural teeth holds complete disillusionment.
“Mr. Russell: Objection to that for the record as being highly prejudicial for the jury, he is quoting hearsay evidence to this jury, which is improper, immaterial and irrelevant to any issue in this case.
“The Court: Overruled.”

The argument complained of does not attempt to inform the jury of the result of the lawsuit referred to nor does it mention any amount. It does not purport to recite the ruling or language of the court, but shows it is only the personal opinion of Counsel for it says: “I know the problem, etc.”

In the recent case of Kiger v. Terminal Railroad Ass’n of St. Louis, 311 S.W.2d 5, 11, our Supreme Court said: “In considering contentions of error in relation to the argument of counsel we have said, ‘The trial court, however, is allowed large discretion in permitting or restraining argument and as to the manner in which improper argument is to be restrained or its prejudicial effect purged or cleansed, and the appellate court will not interfere unless it clearly appears that the trial court has abused its discretion. * * * It is recognized that in the stress of summing up the evidence and analyzing its probative effect in tending to support or refute the fact involved in a sharply contested factual issue, trial counsel’s ardent advocacy sometimes impels him to go beyond the limits -of fair argument; but when the trial court does not consider such instances sufficient to require a new trial, this court is inclined to defer to the trial court’s opinion in these matters, unless upon a full examination of the record it appears that the improper argument was so prejudicial, inflammatory and outside the record as to effect the result on the merits.’ ”

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Cite This Page — Counsel Stack

Bluebook (online)
357 S.W.2d 193, 1962 Mo. App. LEXIS 757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gain-v-dorward-moctapp-1962.