Kirchof v. United Railways Co.

CAULFIELD, J.

(after stating the facts). — I. We have carefully examined and considered defendant’s contention that the trial court erred in overruling defendant’s demurrer to the evidence. Suffice to say that the testimony and admitted physical facts made a case proper for the jury, and the trial court’s action is sustained.

II. The defendant next assigns as error the action of the trial court in permitting Dr. Baer to state that up to the time'of the trial the plaintiff had.been unable to do manual labor. The court’s action was entirely proper. Even non-expert witnesses are permitted to state their conclusions of fact as facts where the basic facts are of such nature that they cannot be reproduced to present to the jury the picture impressed on the mind of the witness. . The impression or conclusion becomes an evidential fact in such case and may be given to the jury because of the impossibility of bringing to them all of the facts that combine to create it. [Fulton v. Met. St. Ry. Co., 125 Mo. App. 239, 246, 102 S. W. 47.] Opinions may be given by non-expert witnesses as to the state of health, hearing or eyesight of another, or the ability of another to work or walk or use his arms or legs naturally, or whether such other is apparently suffering pain, or is unconscious, in possession of his or her mental faculties, intoxicated, excited, calm, etc. [West Chic. St. Ry. Co. v. Fishman, 169 Ill. 196, 198; Fulton v. Met. St. Ry. Co., 125 Mo. App. 239, l. c. 247, 102 S. W. 47; South and North Alabama Ry. Co. v. McLendon, 63 Ala. 266, 276; Chicago City Ry. Co. v. Van Vleck, 143 Ill. 480, 485; Peterson v. Seattle Traction Co., 23 Wash. 615, 641; Partello v. Mo. Pac. Ry. Co., 217 Mo. 645, 656, 117 S. W. 1138.]

The ability of the plaintiff to labor depended upon his strength or weakness. How could that be described? Yet the physical indications of it were apparent to the senses and produced an impression upon the witness. That the witness .in the case at bar was skilled in medical science merely made his impression more valuable.

III. Defendant argues that the court erred in permitting witness Tschudin to testify, over ■ defendant’s objection, that the car was running faster than the cars on that line ordinarily ran, there being no evidence of how fast they ordinarily ran. But we gather from defendant’s argument that the testimony was prejudicial only in so far as it went to show the speed of the car at the time of the collision. Counsel for defendant says in his brief, “This evidence was given on a vital point in the case, viz., the alleged failure of the motorman to control or stop the car. In fact, this point — the speed of the car — is the very pith of this case. No recovery whatever could have been obtained by plaintiff without some evidence tending to establish the speed of the car.” He argues that the jury were unable to grasp what the witness meant by this comparison with ordinary speed; that to some, ordinary speed meant one thing, while to others it meant something entirely different. Granted all that and let us also grant that there was error in the admission- oí the testimony; still the uncertainty of the jury ■ and the prejudice arising from the alleged error were both speedily eliminated and cured by the statement of the same witness upon cross-examination by defendant that the car was going something near fifteen miles an hour, he would not say it was more or less; it was something near that. Defendant was not prejudiced by the ruling.

IV. The first instruction was given by the court at the instance of the plaintiff. After hypothesizing the facts constituting defendant’s negligence, it concluded with, “then, unless you further find from the evidence under the other instructions that plaintiff was so negligent as under all the circumstances to prevent his recovery, your verdict will be in plaintiff’s favor.” etc.

Defendant first asserts that this portion of the instruction “submits to the jury the doctrine of comparative negligence, which does not obtain in this state.” This contention is without merit. That doctrine is, that the degrees of negligence must be measured and considered, and whenever it shall appear that the plaintiff’s negligence is comparatively slight and that of the defendant gross, plaintiff shall not be deprived of his action. The instruction. does not even hint at such a ■doctrine. Neither does it, as®defendant further suggests, “leave it to the jury to say how much negligence plaintiff must have been guilty of before it would bar. his recovery.”

The complained of portion of the instruction, though somewhat awkward in its construction, does nothing more than tell the jury that plaintiff’s recovery is conditioned upon their finding from the evidence that he was not guilty of such negligence as under the other instructions would be sufficient to prevent such recovery.

As defendant makes no complaint concerning the other instructions on that score, we assume without investigation that they correctly and fully set forth the law relating to contributory negligence under the evidence.

Y. Defendant assigns error in the giving of plaintiff’s second instruction in that “it authorizes a verdict upon the theory that the motorman, through his negligence, lost control of his car and for that reason was unable to avoid the collision, whereas the petition proceeds upon the theory that he had control of the car when the danger arose and could have avoided the collision by exercising that control but failed to do so.”

The language of the instruction will not bear the construction thus attempted to be placed upon it. It does not submit an hypothesis that the motorman had lost control of the car, but is consistent with the idea that the motorman kept the control but did not exercise it as an ordinarily prudent man would. He did not have the car under such control that it could be stopped with sufficient promptitude under the circumstances. The language of the petition is broad enough to cover that situation. The motorman “carelessly and negligently and without using ordinary care to control or stop said car caused and suffered the same to strike said wagon, etc.” If, as the instruction hypothesizes, the motorman “did not keep his car under such control as an ordinarily prudent man would under all the circumstances in evidence”, then, as charged in the petition, he did not use ordinary care to control or stop the car. Defendant in support of his contention quotes from Heinzle v. Railway, 182 Mo. 528, 529, 81 S. W. 848; as follows: “It (the instruction under consideration) is also faulty in that it enlarges upon the allegations in the petition in saying ‘or to keep said car under control’ when there is no such averment in the petition.” But in that case nothing was said in the petition about a failure to control the car. The charge of negligence was that defendant’s motorman failed to keep a proper lookout and was running at an excessive rate of speed and failed to ring the bell.

VI. The defendant next challenges plaintiff’s, first, second and third instructions on the ground that the first two are inconsistent with the third in that they deny the right of recovery if the plaintiff was guilty of contributory negligence, while the third applies the humanitarian doctrine and allows a recovery in spite of plaintiff’s negligence.

In support of this contention, the defendant cites Krehmeyer v. Transit Co., 220 Mo. 689, 120 S. W. 78; Hough v. St. Louis Car Co., 123 S. W. 83; Degonia v. Railroad, 224 Mo. 564, 588, 123 S. W. 807. We find no reference whatever to the question in the last cited case. The doctrine now pressed by defendant finds some sun-port in the opinion of Woodson, J., in the Krehmeyer case. That case was decided by the Supreme Court In Banc, May 22, 1909. But in Childress v. Railroad Co., 126 S. W. 169, decided by the Springfield Court of Appeals, January 3, 1910, and in Shipley v. Railway, 128 S. W. 768, decided by the Kansas City Court of Appeals, May 2, 1910, the very same contention was made as is made here. Each of the opinions, one of which was written by Gray, J., and the other by Johnson, J., contain a discussion disclosing very careful consideration, and in the course thereof it is pointed out that in the Krehmeyer case three of the Supreme Court judges joined in a dissenting opinion, declaring that there was no inconsistency between the two hinds of instructions, and Graves, J., wrote a separate concurring opinion, in which he states that he concurs in the result, but does not follow all of Judge Woodson’s reasons.

In the Childress case, the case of Spencer v. St. Louis Transit Co., 222 Mo. 310, 121 S. W. 108, was referred to as indicating Judge Graves’ opinion on the subject. This latter case was decided by Division No. 1 of the Supreme Court, July 1, 1909, but little more than a month after the Krehmeyer ease was decided. In it Judge Graves wrote the opinion and said of an instruction submitting the case upon both doctrines: “We see no error in this instruction. It reiterates the well recognized humanitarian rule.”

In the Shipley case, the Kansas Oity Court of Appeals overruled the contention that the instructions were inconsistent and said that the two issues could.be contested in the same action. In the Childress case the Springfield Court of Appeals found that the instructions submitted only one of the issues and therefore the question was not before them. When. the opinion of this Court in Hough v. St. Louis Car Company, supra, was written, our attention had not been called to said cases. We hold that the instructions challenged áre not inconsistent and the issues submitted in them may be contested in the same action.

VII. Defendant next contends that the plaintiff’s sixth instruction is erroneous in that it authorizes damages for loss of earnings and for future disability to labor, while the petition does not allege and the evidence does not tend to prove, such loss or disability. This assignment' of error is overruled. Neither the petition nor the proof is lacking in either of the respects mentioned. [Gerdes v. Iron & Fdy. Co., 124 Mo. 347, 360, 27 S. W. 615; Dean v. Railroad, 199 Mo. 386, 397, 97 S. W. 910.]

The judgment is affirmed.

Reynolds, P. J.} and Nortoni, J., concur.