Ashby v. Elsberry & New Hope Gravel Road Co. , 111 Mo. App. 79 ( 1905 )

BLAND, P. J.

1. This cause was appealed here on a former occasion and is reported in 99 Mo. App. 178. The evidence on the second trial is substantially the same as on the first one. In the opinion filed by Judge Goode on the former appeal, a full and fair statement of the pleadings and facts, as shown by the record, is set forth and we adopt his statement in full. The last trial resulted in a verdict and judgment for plaintiff in the sum of six hundred and fifty dollars, from which defendant duly perfected its appeal.

One of the allegations of negligence in the petition is, that the defendant permitted cattle to run unattended upon its road. In the opinion on the former appeal it is said: “There is nothing in this case to show that it amounted to negligence to let cows stray on the road from cross-roads to the extent they did.” Over the objection of the defendant, plaintiff was permitted to show that cattle, unattended, did stray upon the road. This ruling is assigned as error.

The.jury was expressly instructed that defendant was not required to keep stray cattle off of its road and could not be convicted of negligence if they strayed upon it. This instruction practically withdrew from the jury all the evidence in regard to cattle straying on the road except the mere fact that they were on it at the time and place of the injury; to show this latter fact was a part of plaintiff’s case and so connected therewith that proof of it could not be dispensed with. In this same connection the court, in passing on objections to evidence offered to show that cattle strayed upon the road, made the following oral declaration or statement in the presence of the jury, to which defendant objected and excepted at the time:

“The objection is overruled in this view of the case, that the gravel road charging toll for the use of the road must keep the road clear like a road overseer must keep the public highway clear of obstructions, and it might possibly be an element in the case.”

Defendant’s objection was not carried forward in tbe motion for new trial and is nowhere mentioned or referred to in said motion.

In Harris y. Powell, 56 Mo. App. 1. c. 26, this court, in passing upon a similar objection in like circumstances, said:

“Complaint is also made by appellant as to tbe re-' marks of tbe court in excluding tbe evidence offered to prove tbe customs of physicians in visiting patients. Tbe exception to these remarks of tbe court, not having been called to its attention in tbe motion for a new trial, is to be deemed waived.”

In respect to tbe same character of evidence, Watson, a witness for plaintiff, was partially examined by referring to bis evidence on tbe former trial as preserved in tbe bill of exceptions, to which mode of examination defendant duly objected and excepted. If tbe witness was reluctant, or if bis memory was clouded, we can see no impropriety in this course of examination. It was a matter resting very largely in tbe discretion of tbe trial judge and if it does not appear be abused bis discretion, such an examination, though out of tbe usual course, does not call for a reversal of tbe judgment. We observe nothing in tbe record in respect to tbe examination of this witness to convince us that tbe trial court abused its discretion in regard to tbe mode and manner of bis examination.

2. Tbe contention is made that tbe instructions given for plaintiff are erroneous. In respect to tbe general instructions, it suffices to say that after a careful reading of them we think they are in harmony with tbe opinion of this court delivered on tbe former appeal. They are confined to tbe issues raised by tbe pleadings and are supported by tbe evidence. Special objections, however, are made to instructions numbered seven and eight which read as follows:

“7. Tbe court instructs tbe jury that if you find tbe issues for tbe plaintiff, you will in estimating her damages take into consideration the character and extent of her injuries, the mental and physical pain and suffering endured by her in consequence of such injuries, and their permanency, if by the evidence shown to be permanent, and any amounts shown by the evidence to have been expended by her or contracted by her for medical and surgical attention, this item not to exceed one hundred and twenty-five dollars, and you may find for her in such sums as under the evidence will be a reasonable compensation for the injuries shown by the evidence to have been sustained by her, in all not to ex-' ceed the sum of five thousand dollars.

“8. The court instructs the jury that whenever the term ‘ordinary care or in an ordinarily careful manner’is used in these instructions, that it means such care as an ordinarily prudent, careful person or persons would or should exercise or use under like conditions or circumstances.”

The objection to number eight, defining ordinary-care, is in the use of the phrase “would or should exercise.” The contention is that “would or should” require the exercise of more than ordinary care; the exercise of such care as, in the judgment of the jury, a person of ordinary prudence should use, and not such care as ordinarily prudent persons do use in like circumstances. The instruction is open to criticism; but the defendant used the phrase “ordinary care” in its instruction (No. 2) given, without attempting a definition. This indicates that defendant was satisfied with the definition given, if it was not and desired a more definite and correct definition, it should have asked for one; by not doing so, it is deemed to' have adopted the one given. [Harmon v. Donohoe, 153 Mo. l. c. 274, 54 S. W. 453; Browning v. Railway, 124 Mo. l. c. 71, 27 S. W. 644.] In regard to instruction numbered seven, it is insisted that it is too broad and that plaintiff, being a married woman, is not entitled to recover for medical aid and attention. The latter objection is answered against defendant by the case of Hickey v. Welch, 91 Mo. App. 15, where it is said:

“It is also assigned for error that plaintiff was permitted to recover the cost of medical attendance at all, on the ground that her husband was liable for such necessary expense instead of her. That was once law in this State, but since a married woman has been made sui juris is no longer. If she personally incurs such a debt or makes such an outlay, she may recover it. [R. S. 1899, sec. 4335.; Hill v. Sedalia, 64 Mo. App. 494.]”

In respect to the other objection, to-wit, that the right to recover is stated too broadly, it will be found that it is stated no broader than in a like instruction given in the case of Browning v. Railway, 124 Mo., , where, at page 72, in regard to which instruction, the court said:

“The instruction is not erroneous in its general scope; and if, in the opinion of counsel for defendant, it was likely to be misunderstood by the jury,.it was the duty of the counsel to ask the modifications and explanations, in an instruction embodying its views.” [See also Harmon v. Donohoe, supra.]

3. In the examination of the superintendent of the road, defendant brought out the fact that the road (at the place of the accident) had been broadened and guard rails erected, after the accident happened, and offered the following instruction in respect to this evidence which the court refused:

“2. The court instructs the jury that whether or not the defendant’s road has been widened or whether or not guard rails have been put up immediately east of Stephens bridge on said road is immaterial to any of the issues in this case, and the jury is instructed to disregard all the testimony in regard to these matters.”

The refusal of this instruction is assigned as error. It seems to us that the defendant should not have offered this evidence; that after it was offered, if defendant desired to withdraw the same, it should have at once moved the court to- do so, and that its motion came rather late. It is not good practice to permit a party to experiment with his witnesses by offering incompetent evidence and, when he finds at the end of the trial that it does not answer his purpose or that it is prejudicial, to permit him to withdraw it from the jury. We think, under the circumstances, the court properly refused to withdraw the evidence from the jury.

4. The defendant offered a witness (Reid) to give an opinion as to whether the road, at the place of the accident, could have been made wider, taking into consideration the topography of the surrounding land. Plaintiff objected to this evidence on the ground that Reid had not qualified as an expert. The court sustained the objection. This ruling was assigned error. It is nowhere stated in the bill of exceptions what Reid’s answer would have been, if he had been permitted to answer the question, or what the defendant expected to prove by him. In this state of the record, the ruling of the trial court is not reviewable. [St. Louis v. Babcock, 156 Mo. 148, 56 S. W. 731; State ex rel. v. Hickman, 85 Mo. App. 199; State v. Murphy, 90 Mo. App. 548.]

5. Instructions were asked by defendant and refused which were opposed to the law of the case as set forth in the former opinion of this court; but it is earnestly insisted by counsel for defendant that we review some of the legal points ruled on in the former opinion. All the legal propositions in the case that we passed on in the former opinion have become the law of the case. [Carey v. West, 165 Mo. 452, 65 S. W. 713; Lawson v. Spencer, 90 Mo. App. 514.] Not only so, but we think they were all correctly decided and for these good and sufficient reasons refuse to review or reconsider them.

Discovering no reversible error in the record, the judgment is affirmed.

All concur.