Steele v. Stahelin ( 1926 )

While passing from a street car to the street curb, plaintiff was struck by an automobile owned and being used by defendant John F. Stahelin and driven by defendant Hattie Stahelin, his daughter, and received injuries. This suit was brought to recover damages. Plaintiff had verdict and judgment and defendants review by writ of error.

Defendants insist that plaintiff was guilty of contributory negligence and their motion for a directed verdict on that ground should have been granted. Plaintiff claimed she got off the trailer of the street car and looked for oncoming traffic, saw an automobile approach and come to a stop, and then she started for the curb and was struck just before she reached it. Defendants claimed that plaintiff got off the street car trailer, the car then started and she ran directly in front of the automobile; that they saw her at all times, reduced the speed of the automobile to about 10 miles per hour and then put on the brakes and endeavored to save her from injury but struck her with a fender. The evidence presented an issue of fact for the jury and not of law for the court.

The purpose of requiring automobiles to stop, when about to overtake a street car standing to take on or let off passengers, is to safeguard human life, and the restraint is not lifted with the starting of the street car but remains until travel can be resumed with safety to persons in the street needing to reach the street curb.

The circuit judge instructed the jury that plaintiff could not recover, if her own want of care contributed to the accident, unless her danger was discovered by defendants in time to have prevented the accident if reasonable care had been exercised. Defendants' testimony justified submission of the question of discovered negligence and the instruction given sufficiently presented such issue and precluded consideration of concurrent negligence.

There was medical evidence, apart from the hypothetical question, from which the jury could find the injuries were permanent. The hypothetical question was, possibly, too highly colored, but it is well to remember that before the jury could consider the answer every assumed fact therein stated had to be found true under the evidence. We spend no more time upon this subject, because the hypothetical question can be eliminated and still leave sufficient evidence to support submission of the question of permanent injury to the jury.

Exclamations of pain, if any, while being examined by a doctor in preparing for the trial were inadmissible, but existing conditions calculated to produce pain and suffering could be shown. The doctor laid before the jury the examinations and tests he made and said he found marked soreness and rigidity around the sacral iliac joint which impaired movement, and plaintiff's "turning on my table at my request, and also on attempting to rotate the sacral iliac joint by grasping both bones with one of my hands and telling the patient to attempt to do this motion; it caused her intense pain." We do not think this testimony rests upon exclamations made by plaintiff, and, therefore, within the rule of exclusion, but shows a condition of soreness and rigidity, necessarily occasioning intense pain in attempting a bodily movement.

We find no reversible error and the judgment is affirmed, with costs to plaintiff.

BIRD, C.J., and SHARPE, SNOW, STEERE, FELLOWS, CLARK, and McDONALD, JJ., concurred.