Porter v. Hetherington

158 S.W. 469, 172 Mo. App. 502, 1913 Mo. App. LEXIS 497

• Court: Missouri Court of Appeals
• Decided: June 30, 1913
• Status: Published

Opinion

TRIMBLE, J.

This suit is for personal injuries sustained by reason of being knocked down and rolled over by an automobile driven by defendant’s negro chauffeur who was taking the automobile home pursuant to defendant’s commands.

Plaintiff and her sister were walking home on the right hand side of Grand avenue going south and had reached a point between Twenty-fifth and Twenty-sixth street where the sidewalk ended close to a rock crusher. When the two ladies reached the end of the sidewalk, they stepped out into the street, which was paved with asphalt, and, keeping near the west curb, continued on their way south. Just after stepping from the wayside, to avoid the dirt or dusty path where the sidewalk did not exist, the ladies looked back up the avenue and saw defendant’s automobile coming, but it was out in the center of the street, and as they were near the west curb, there was no danger whatever from it, so they proceeded on their way south. There was a space of twenty-four feet between this west curb and the west street car track. At the time the ladies looked behind them, the automobile was perhaps 150 feet away and apparently in the middle of the street; and between the ladies and the west rail of the street car track was a space of at least twenty feet. In a moment the automobile, without warning or noise of any kind, swerved out to the curb and struck the ladies, knocking them down and rolling them over on the pavement until the automobile struck the curb, ran up over it and against a trolley pole, and stopped. The first the ladies knew of the car being out from the center of the street and upon them was when it struck them. When the automobile stopped against the pole it was headed in a southwest direction.

The rubber tire of the left front wheel was off. During the day it had been taken . off, owing to a puncture, and the wheel was “riding on the rim,” that is, the metal flange on the felloe of the wheel was resting on the asphalt and, as the weather was warm, this was a little soft, and the rim was sinking into the asphalt making a mark and rendering the machine somewhat more difficult to guide .properly. The steering gear was also worn. The defendant had ordered the chauffeur to take the machine home in that condition. The chauffeur, as he struck the pole, was screaming, “He had no business sending me out with this machine, it was in no condition to be on the •street.” And immediately after striking the pole said, “If I hadn’t run into that pole I would be going .yet.”

The next day after the injury the defendant went with his chauffeur to the place where the collision occurred and had the details of the accident related to him. Afterwards, in talking to the mother of plaintiff, defendant said, speaking of his automobile, “I have owned it for eight years and never had •an accident with it. It is very easily controlled. I could stop it within 'five feet. He (meaning the •chauffeur) must have lost his head.” The accident occurred on June 3, 1911, and on the 13th of June, when the chauffeur’s month was up, the defendant refused to pay him, giving as his reason for refusing, that it was his fault that caused the trouble with the ladies.

It was in evidence by the chauffeur that the automobile was not going over five miles an hour; and there were no obstructions between the automobile and the plaintiff to prevent the chauffeur from seeing and warning her. That, at that rate, the car could have been stopped in five feet. The negligence charged was that the servant in charge of the vehicle failed and neglected to use the highest degree of care that a very careful person would use under like or similar circumstances in that there was a failure and neglect do warn plaintiff of the approach of said car, or to ■stop said ear after he saw or could have seen plaintiff’s •danger; that he operated said motor vehicle with the machinery thereof in a defective condition making it difficult to control said ear; that he failed to keep a lookout for pedestrians and turned said car out of its course and ran it against plaintiff. The answer was a general denial and a plea of contributory neglegence. The jury returned a verdict for $900 in favor •of plaintiff. Defendant appealed.

Complaint is made of plaintiff’s instruction No. 4, but we are unable to see any merit in the objections thereto. It did not assume any fact at all much less ■a fact in dispute. Nor was it objectionable because it ignored the question of the reasonableness of the time in which the chauffeur could have warned plaintiff or stopped the ear. The chauffeur swore he was going up grade, not over five miles an hour and could have stopped in five feet. Later on he testified that he saw the women when they stepped from the sidewalk into the street and that they started across the ■street, that he turned to the left but a street car coming from behind caused him and the women to turn towards the right; that when he saw the women in front of his ear they were twenty feet away and he attempted to pass them by going between them and „ the curb and in doing so struck them. In other words, he saw the women in front of him still going south but going diagonally down the street and approaching the curb and, although he could have stopped the car in five feet and allowed the women to reach the curb in safety, he attempted to pass them on the right by going between and the curb and in doing so struck them. Consequently, by his own admission, he saw them in a reasonably sufficient time to have warned them or to have stopped his machine before striking them. He says he did warn them, but admits he did not stop. Plaintiff says he neither warned her nor stopped, and, on appeal, we must accept that evidence which most strongly supports the verdict.. So that it was not necessary to include in said instruction the question of whether he saw them in a reasonably sufficient time to have given warning or to have stopped or both, in order to avoid striking them. His testimony, when studied and analyzed and all reasonable inferences drawn therefrom, justifies the belief that there was ground for thinking the chauffeur “lost his head” and also that the tireless wheel, sinking into the pavement with its unprotected metal rim, may have helped to bring about the collision, since it made the machine harder to steer. The' mischief originated, however, when the .chauffeur, instead of stopping, tried to pass the women on the right. He tried to pass on the left and then tried the right, according to his own testimony, and never once tried the expedient of stopping, which he should have done, if he had been exercising the “highest degree of care of a very careful person” required by section 8523, Revised Statute 1909. These, obserservations answer the objection .that instruction No. 4 should have contained the words “by the exercise of due care” after the words “could have seen plaintiff, ” since, even if they are ordinarily required, they were not necessary here where the chauffeur admits he actually saw plaintiff in plenty of time to have stopped before striking her. Nor was the instruction erroneous in submitting to the jury the alleged failure on the part of the chauffeur to look out for pedestrians since there was evidence that there were no obstructions on the street and the automobile was plainly seen out in the center of the street 150 feet away and that, as it approached plaintiff from behind, it curved out toward the side until it struck her. The instruction merely told the jury that if they find the chauffeur, while acting as a servant of defendant and in the scope of his employment, failed and neglected to use the highest degree of care that a very careful person would use under like or similar circumstances in doing the various acts submitted, and that as a direct result thereof plaintiff was injured, then plaintiff could recover provided the jury further found that she was exercising ordinary care for' her safety. This was proper. [R. S. Mo. 1909, sec. 8523; Bongner v. Zeigenheim, Jr., 165 Mo. App. 328.]

Plaintiff’s instruction No. 5 is not open to objection. It merely told the jury that “it is averred by the defendant in his answer that any injuries that the plaintiff received at the time and place in question were received because of her own negligence at the time, which directly contributed thereto” and that the burden was on defendant to prove “such contributory negligence.” We are unable to see anything wrong with it. Defendant certainly did set up the defense in his answer.

The sixth instruction is likewise unobjectionable. It did not tell the jury that plaintiff’s injuries, or any of them, were permanent, but that if the jury found there were injuries they should take them into consideration, and, if any were permanent,- the jury could take that into consideration in arriving at their assessment of damages. This was not telling the jury to guess at the permanency of any or all of said injuries, but only that, if any injury was believed by the jury to be permanent, they could take the fact of such permanency into consideration. There was sufficient testimony as to the permanency of the injury to the womb to justify the submission to the jury of the question of permanency, although the evidence as to permanence was not altogether free of doubt.

There was no error in admitting the testimony of Dr. Harrington that he thought her womb was injured at the time he first examined her. He was not allowed to tell what the patient told him. That was excluded. And while he testified that he made no local examination, his testimony as a whole shows that by that he meant an internal examination, and that his conclusion that her womb was injured was-based on the examination and observation of her that he did make and not solely on what she told him. There was no other internal injury found or complained of, and at the time of the trial and before that when Dr. Harrington and afterwards Dr. Barber did make-an examination, the womb was found to be retroverted, congested and certain parts of it enlarged; and it was shown that this condition of the womb would produce the symptoms observable in the plaintiff. The substance of Dr. Harrington’s testimony was that at first he made no actual examination of the womb itself but from his examination and observation of her, he thought there was “some deep internal injury” and thought it was her womb. It is true the petition claimed only one internal injury, viz., to the womb, but as the other evidence showed no other internal injury but that, and did show that, we cannot see how the admission of Dr. Harrington’s reference to “some deep internal injury” could be prejudicial. If that were all the testimony relied on to prove an injured womb, then it might be too much in the nature of speculation, but it was not offered to show that the womb was injured but rather to prove that the injured condition of the womb had manifested itself at that time and hence did not proceed from some other cause- arising after the accident. There was no testimony that Dr. Harrington based his opinion on what his patient told him as was in the case of Holloway v. Kansas City, 184 Mo. 19, l. c. 31.

Plaintiff’s expert witnesses were allowed, over defendant’s objections, to state that in their opinion the impaired condition of the plaintiff’s womb could have been caused by being struck and rolled over by an automobile. When, ’ however, defendant’s experts were asked questions bearing upon whether the collision could have caused the injured or diseased condition of the womb, they were not allowed to-answer. And this brings us to tbe only serious question in this case.

Before going into this question let us bear in-mind the issues before tbe jury. Tbe plaintiff was-claiming tbat among ber injuries was one to ber womb; and tbe evidence showed tbat tbe only injured condition hkely to be permanent was tbat of tbe womb.. Tbe evidence also showed that the plaintiff was struck on tbe back and hip. There was no bruise or apparent injury to tbe abdomen, nor was there any hemorrhage from any of tbe pelvic organs. And plaintiff's experts bad been asked whether tbe condition of tbe womb could have been caused by an automobile striking plaintiff in tbe back, throwing ber to the-pavement and robing ber over. And both of plaintiff’s experts bad answered that it could. One of them bad expressed a little doubt as to whether a. stroke on tbe back would necessarily cause it, buttbat tbe general accident, shock, contusion, concussion and so on might do it. But, on being asked whether or not tbe condition of tbe womb could have-been caused by being struck by an automobbe and being robed by tbe automobile on tbe pavement, be-said be thought it could. In tbe questions asked by plaintiff there was no statement of tbe facts, circumstances or conditions under which tbe accident occurred or tbe force with which she was struck, simply whether or not tbe striking of plaintiff in tbe back,., throwing ber to tbe ground and rolbng ber on the-pavement by an automobbe could cause tbe impaired condition of tbe womb. Defendant objected to these-questions because these elements were not included in tbe questions, and for other reasons, but tbe objections were overruled, and tbe plaintiff’s experts were allowed to answer. In this state of tbe evidence • one of defendant’s expert witnesses (defendant himself who was a physician of twenty-five years’ experience) was asked whether or not the accident as described by plaintiff could have caused the condition of the womb as described by plaintiff’s witness, Dr. Harrington. (It was proved that the doctor had heard all the evidence.) He attempted to answer that it could not, but, on objection from plaintiff, he was not allowed to answer and the answer given was stricken out. The ground of plaintiff’s objection was that the question did not contain the proper elements showing the facts, circumstances and conditions under which the collision occurred. But this is precisely what the plaintiff’s questions lacked, and to which defendant objected, but without avail. In fact, defendant’s questions did not leave out the elements of the. attendant circumstances because it included those facts by referring to the collision as “the accident as described by plaintiff” and to the condition of the womb “as shown by Dr. Harrington” who was plaintiff’s expert. In other words, instead of doing as plaintiff did, asking simply whether the womb condition could have been caused by an automobile striking plaintiff in the back, throwing her down and rolling her over (without regard to the circumstances or force of the collision), defendant adopted plaintiff’s story as to the collision and its attendant circumstances, and was asked as an expert whether that kind of a collision could have caused the impaired condition of the womb, which plaintiff’s witness said she had. But even when plaintiff’s own testimony and that of other witness was adopted on the matter, defendant’s experts were not allowed to answer. Plaintiff now contends that the vice of defendant’s questions to his experts lies in the fact that they merely referred- the expert to the evidence as a basis for his opinion instead of reciting the assumed facts themselves so that the jury could see what the expert had as a basis for his opinion. It is true, that, if the facts are controverted, it is improper to refer the expert to the testimony of the witness for the basis of his opinion because the jury have no way of knowing on what testimony or view of the evidence the expert is basing his opinion, and hence this gives them no opportunity to properly weigh and judge his testimony; and it puts the expert in the place of the jury because it leaves it to him to say what testimony is true. But where there is no dispute as to the fact of the collision and its character, (as was the case here) it is pot improper to refer the expert to the evidence given for plaintiff and her witnesses as a basis for his opinion. As to this distinction between cases where there is a conflict in the testimony and where there is not, see Rogers on Expert Testimony (2 Ed.), 70, 71; State v. Privitt, 175 Mo. 207, l. c. 227; Feed, etc., Co. v. Railroad, 129 Mo. App. 498, l. c. 506; Smart v. Kansas City, 208 Mo. 162, l. c. 201, 202. In Rodgers on Expert Testimony, p. 71, it is said that “even in cases where more than one witness has testified, if there is no conflict in the evidence, and if the testimony is not voluminous” a court may in its discretion allow a question to be put to the expert without recapitulating the evidence. And in Feed Co. v. Railroad, supra, 506, it is held that, “In those instances where there is no substantial ground to suppose that different persons could have more than one view as to the evidence which the jury has heard, or that any one could give it more than one interpretation, it is allowable to ask the expert’s opinion on the evidence he has heard, for in ■such instances the jury may be said to know upon what his opinion is based. ' And so the Supreme Court, in the case just cited (State v. Privitt), stated the rule to be (italics ours) that “when, in a proper case for expert testimony, the facts are admitted, or proved by evidence which is not conflicting, the opinion of an expert upon such facts is admissible as a scientific deduction.” In a case formerly decided by that court, it was said that, “If the expert has been present in court, and has heard all the evidence, and there is no dispute about the facts, he may then be asked his opinion about the whole matter.” [State v. Klinger, 46 Mo. 224.] The case of Livery Co. v. Railway, 105 Mo. App. 556, in the St. Louis Court of Appeals was where the facts were controverted.”

Plaintiff contends that the questions put by her to her experts were not hypothetical questions and hence did not have to include the necessary element» that the questions to Doctor Hetherington did. It would seem that if plaintiff’s questions were not hypothetical neither were defendant’s. We are inclined to think they were all of the same character, simply questions put to experts as to whether or not the collision could have caused the impaired condition of the womb. If it be urged that it is within the discretion of the court as to whether an expert can be referred to the testimony instead of recapitulating the facts, the answer is that such discretion should not be exercised one way on plaintiff’s side and the contrary way on defendant’s.

Another expert witness, Dr. Ayres, who was appointed by the court to make a personal examination of the plaintiff and who was offered by defendant, testified as to the condition in which he found her womb, and that two causes could produce the condition he found, namely, that a percentage of women are born that way, and inflammation of the womb and of the organs about the womb could in course of time produce it. The defendant then attempted to show by him his opinion as to whether the condition he found was the result of, either of said two causes or the result of a blow or injury, but an objection on the part of plaintiff was sustained. Defendant then asked the witness what kind of a blow it would require to cause the result he found in plaintiff. An objection to this was sustained. He was then asked whether or not a blow, which would cause the condition he found, would be followed by a hemorrhage, and an objection to this was also sustained. We think the objections to the last two inquiries above were improperly sustained. The first was very likely proper, since, in the form in which it was couched it may have enabled the witness to usurp the function of the jury, But the question of the nature, force and extent of a blow that would be sufficient to produce a certain condition of an internal organ like the womb, would seem to be a proper inquiry to make of an expert; and also whether or not, owing to the situation of the womb and the protection afforded by the pelvic bones, a blow sufficient to cause the condition he found would not so rupture and injure the other organs and adjacent tissue as to cause a hemorrhage. It was shown that there had been nó hemorrhage. In view of this fact, the defendant was entitled to show by his expert that, in his opinion, if a blow or an injury had caused the condition he found, it would have produced hemorrhage, a symptom that was absent at the time of and after the collision. The only permanent injury plaintiff claimed to have was that to her womb. It is an internal organ not subject to ordinary inspection, liable to impairment from a variety of causes even in those who have never been in an accident. Whether the collision caused its impaired condition was a very important issue, and defendant was entitled to lay before the jury the opinion of his experts, not only as to the nature and force of the blow sufficient to cause that impaired condition, but also what symptoms would be likely to manifest themselves if a blow. or an injury did cause it. The jury were entitled to have the benefit of this testimony in order to properly pass on the question of the nature and extent of the injuries inflicted on plaintiff. It is true this particular witness, Dr. Ayres, was finally permitted to say whether or not the collision conld have caused the condition, but this was not sufficient to cure the exclusion of the other questions. The answer to this last question was nothing more than a statement by Dr. Ayres that he did not see how it could have produced the condition. But the other questions, if they had been allowed an answer, would have given plain and cogent grounds or reasons why the collision ought not to be considered the cause, reasons that would have appealed far more strongly to the common sense of practical jurors than would the mere opinion, conclusion or ipse dixit of the expert.

For these reasons we are of the opinion that error was committed and that a new trial should be granted. That plaintiff was struck by the automobile through the negligence of defendant’s negro chauffeur and is entitled to damage was undoubtedly shown. The extent to which she was injured, however, is a matter which the defendant has as much right to have fairly litigated as the question of liability, since it governs the amount which he should be called on to pay. Inasmuch as the case is to be retried, it may be well for us to state that, under the facts as presented, there was no error in refusing defendant’s instructions 9, 10, 11 and 12. Reversed and remanded.

All concur.