Wise v. Wabash Railroad , 135 Mo. App. 230 ( 1909 )

GOODE, J.

(after stating the facts). — It is assigned for error that plaintiff was permitted to testify her ribs were broken in the accident, the argument being that no one but an expert physician was competent so to testify. What plaintiff testified regarding this matter Avas admissible, for she said she positively knew her ribs were broken and felt the ends of them rubbing against each other. The weight of her testimony Avas for the jury and it was the privilege of counsel for defendant to cross-examine her for the purpose of discrediting either her knowledge or truthfulness; a privilege they utilized in full measure. The case of Ferguson v. Davis Co., 57 Ia. 601, is directly in point on this ruling and Ave approve of its reasoning and conclusion. A party to an action might testify corruptly or mistakenly about a rib or other bone in bis body being broken, as be might about any other fact, but such an injury is not so obscure as to lie beyond the pale of common testimony and depend entirely on the opinion of experts.

The first instruction granted for plaintiff is questioned for omitting to require the jury to find the train was ready for the reception of passengers when plaintiff got on, or that she and others were invited, expressly or impliedly, to get on then. The petition alleged that when the train arrived at M'oberly and the passengers it was carrying for said station had alighted, all persons who desired to take passage were “by defendant invited and led to believe they could then and there enter and get aboard the train.” This averment was traversed by the general denial and is said to have been an issuable fact on which an affirmative finding was essential to a verdict for plaintiff. If the issue was introduced into the case by the pleadings, it was eliminated by the testimony.. We could not hold there, was any room to find the train was not ready to receive passengers, or they were not welcome to enter when plaintiff attempted to do so, without disregarding all the evidence on' the issue. The supposed warning of the car inspector against her getting on the train was nearly an express invitation for her to get on, as the position of the train and the footstep, and defendant’s habit of receiving passengers, were an implied invitation. The inspector told plaintiff to go to the east end of the coach and there would be preparation made for her. She did as he directed, saw the footstep and coach were prepared to receive passengers, and got on in the inspector’s sight without further caution or word from him. The inspector said nothing to warn plaintiff of a jostle when the parlor car was coupled, though he saw its approach; and, clearly, he was not thinking of danger from that source. He said some one would assist her, but she had Mr. Reed to do that. Neither what the inspector said, nor any other fact in evidence, goes to prove passengers were not being received on the train or that no invitation was extended to plaintiff to get on, but all the evidence is the other way. In instructing the jury a court may take for true a fact which is admitted, or proved beyond doubt by the uniform testimony for both parties. [Fields v. Railroad, 80 Mo. 203, 206; Rive v. McFarland, 41 Mo. App. 489, and cases cited on page 496.]

The exception to the first instruction is the'main challenge of the theory on which the case was submitted to the jury, and what we have said in disposing of it disposes, too, of most of the other exceptions and of one much insisted on.; namely, that the court erred in charging the jury, in an instruction requested by defendant, that if it was defendant’s custom to run train No. 6 (the one plaintiff got on) up to the Moberly depot to allow passengers to alight from it and get on it, and then proceed to make up a new train for St. Louis by attaching additional cars, and while making up such new train it did not invite passengers to get on train No. 6, but afterwards had the station master call for passengers for it, and plaintiff undertook, while said train was being made up, to get aboard, and was told the train was being made up and she would have time to get on, but nevertheless undertook to do so while the cars were being coupled together to form a new train, plaintiff was not entitled to recover, even though the defendant made a harder jerk or bump in coupling than was necessary. The court amended this instruction by adding to it this clause: “Unless you (the jury) further find from the evidence defendant’s agents making said coupling saw, or, by the exercise of reasonable diligence, might have seen plaintiff was in the act of getting on the train.” The hypothesis of the instruction, i. e., that passengers were not invited to get on the train while other cars were being attached to it, was opposed to all the testimony and should not have been given on tbe present record, either as asked or as altered. Tbe amendment is said to have taken out of tbe case tbe defenses of contributory negligence and assumption of tbe risk; but this it did not, except in so far as those 'defenses were based on tbe theory that plaintiff’s attempt to board tbe train was premature. If she omitted ordinary care for her own safety in tbe manner of her attempt, or if it was made when she knew, or, in reason, ought to have known, a jar .of such violence was imminent as would deter a person of ordinary prudence from tbe attempt, defenses on those facts were open to tbe company. That is to say, tbe company was not precluded from asserting she caused or contributed to tbe injury by carelessness (for instance, carelessly getting entangled in her long dress) or by stepping on the coach when it was apparent tbe parlor car was about to be shoved against it with dangerous violence.

Defendant’s contention that tbe use of cars which coupled automatically was compelled by law, and tbe jar of coupling in this case was no greater than is incident to such couplings when carefully made, were given full force in tbe instructions to tbe jury. No absolute defense arose out of those facts, if both were true, and tbe second one may be disputed. I-Iowever, if the coupling was effected without needless violence, there is room for a finding that it was negligent conduct to admit passengers on 'the rear coach while tbe coupling was in progress; and, indeed, if tbe movement was bound to burl an embarking passenger about as plaintiff says she was, defendant’s conduct was incomr patible with tbe high care common carriers must take of passengers. [Huelsenkamp v. Railroad, 37 Mo. 537; Clark v. Railroad, 127 Mo. 197.]

An exception was taken to a change made by tbe court in an instruction requested by defendant -which dealt with the treatment of plaintiff’s foot and her observance of tbe advice of the physicians who treated ber. The jury were told in the eleventh instruction for defendant, that if they found plaintiff did not have proper treatment applied to her foot; that her Kansas City physician ordered rest for the foot and the use of crutches in walking as necessary to a cure, and further found a cure could have been effected by following his advice, and plaintiff failed for any cause substantially to follow his directions, and the subsequent condition of the foot was due to her 'disregard of his advice, then, even though defendant was found to be liable, the jury could not allow plaintiff anything on account of the condition of her foot as the result of her own fault, but should allow her only such damages for the injury to it as were the direct result of the injury under proper treatment and care on her part. The court changed said instruction from the form in which it was requested by inserting the word “substantially,” so as to require the jury to find only that plaintiff failed substantially to follow the physician’s directions. This amendment is said to have been erroneous. In another instruction dealing with the same matter, the court told the jury that when a person was injured by the fault of another, it was the duty of the injured person to use all possible means in his power to effect a cure, and plaintiff was bound to do this; that defendant could not be held liable for any condition or aggravation .of her injury resulting from want of proper treatment, or negligence on her part, or failure to follow the advice of her physician; and though the jury might find plaintiff had been injured, yet in no event could defendant be liable for the condition of her foot due to walking without crutches, or failure to give it rest, or follow the direction of her physician. Plaintiff was not entitled to recover for any aggravation of the injury to her foot due to careless non-observance of the advice of her physician about keeping her weight off it. [Railroad v. Denson (Texas), 72 S. W. 70; Strudgeon v. Sand Beach (Mich.), 65 N. E. 617; Zibbell v. Grand Rapids (Mich.), 89 N. E. 563.] From the stress laid by one of the physicians who testified on the prescribed regimen as being essential to a cure, there hardly could be substantial compliance without keeping pressure off the foot as much as was possible. The seventh instruction contained nothing of which appellant can complain and was, perhaps, over-favorable to its contention in excluding an award of damages for aggravation of the injury to the foot due to plaintiff’s walking without crutches, or failure to follow her doctor’s advice, whether she did so negligently or necessarily. It was not intended to exact literal observance of the advice in one instruction and only substantial .observance in another, and, therefore, the seventh instruction must be construed with the eleventh. Though as a general proposition of' law no more than substantial observance is required, the charge to that effect in the case at bar was misleading because it authorized, the jury to find plaintiff substantially followed her physician’s advice, whereas her own testimony showed she did not. Her statement that she used crutches for eighteen months in the house, but not when she went outside; that she sometimes walked around a block of the town, went to church on Sunday, visited her friends in a carriage, walking to the carriage from the house and back without crutches, show beyond question she fell short of substantial compliance with the physician’s direction.- Moreover, he told her she must stay on crutches at least eighteen months, adding he meant until the foot was well; and he said she was doing harm by walking without then! at the time of the trial. From the entire testimony it obviously was necessary for her to use crutches until her foot was well. The omission to use crutches to the extent she did was a disobedience of the physician’s order, and one the jury might find was careless; for plaintiff’s excuse for her conduct was not the compulsion of some necessity, but that crutches were awkward.

The judgment is reversed and the cause remanded.

All concur.