McClanahan v. St. Louis & San Francisco Railroad

REYNOLDS, P. J. (after stating the facts).-Errors assigned are that the court erred in admitting incompetent evidence on behalf of plaintiff; in excluding competent evidence offered by defendant; in giving the instructions for plaintiff and in refusing instruction No. 11 and the demurrer to the evidence asked by defendant, and that the verdict is excessive, the result of bias and prejudice. There was no error in the instructions given for plaintiff. The platform on which plaintiff fell was used by the defendant at Terry; defendant invited passengers to board or alight from its cars by means of this platform ; it was required to keep it in good condition. Defendant knew or should have known of its condition, and is responsible for whatever accident happened to persons boarding or alighting from its train by reason of the defect in the platform. Nor was it error to overrule the demurrer to the evidence of plaintiff. The case was for the jury under proper instructions. We would have no hesitation in holding the appellant company responsible for any injuries received by plaintiff, and do not think that the verdict was excessive, provided we could be satisfied that the jury were warranted by the evidence in the case, in finding that the fracture of the bone and consequent shortening of the right limb' by some two and a half inches, occurred by reason of plaintiff falling into the hole in the platform. The accident occurred on the 28th day of December, 1907. Twenty-one days thereafter plaintiff filed her petition in the circuit court of Pemiscot county. We have set out the material allegations in our statement. It will be noticed that the original petition avers that the injuries resulting from the accident were “a bad bruise and slight abrasion of the outer upper — 405 — third of the right thigh; a slight abrasion and brnise of the inner third of the upper right thigh; a dislocation of the right hip; a rnptnre of the synovial mem-branee (probably meaning membrane), of the joint of the right hip; a brnise and strain of the peritoneum; a severe wrench and strain of the spine and other internal and external injuries.” It is in evidence in this-, case that a few days after the injury, plaintiff was attended by three physicians, whom she and her husband summoned. The use of the technical terms in the-original petition lead to the fair inference that she-described the injuries suffered by her in the accident as they were told to her or to her attorney by these physicians or surgeons who had attended her, when having in preparation the drafting of the petition in which her cause of action is set out. It is true that some of the terms used in this petition in describing the injuries received are so general that we cannot, with certainty, say under the allegation of “other internal and external injuries,” a broken bone is included, but surely a fracture of any bone, much less of the femur or large upper bone of the right leg, would hardly be said to be covered by any of the specific injuries set out in this original petition, and it is almost incredible that any surgeon or physician authorized to practice in this State should confuse a fracture of the femur, so serious as to result-in the shortening of the limb, with a dislocation of the right hip or a rupture of the synovial “membranee” (membrane) of the joint of the right hip, and certainly remarkable that so serious and patent an injury as the fracture of the femur should not have been specifically mentioned, if' that injury was then present. On September 4, 1908, that is to say, about nine months following the filing-of the first petition in the case, plaintiff filed her amended petition, in which it will be noted that the injuries charged to have been received on the occasion of the accident are, “bruise and abrasion of the outer406 upper third of the right thigh; bruise and abrasion of the inner third of the upper right thigh; rupture of the synovial membrane of the joint of the right hip; dislocation of the right hip;” (and for the first time) ‘ ‘ fracture and breaking of the femur hone in the right leg.” Then are repeated, “bruises and strain of the peritoneum; wrench and strain of the lower spine, and other internal and external injuries.” Thus for .the first time, and over nine months after the accident occurred, plaintiff avers that the result of the accident was the “fracture and breaking of the femur bone of the right leg.” It may he said here that at the trial, and justified therein by the testimony of all the physicians and surgeons who testified, plaintiff abandoned all attempt at showing any injuries received by reason of the fall save this fracture and breaking of the femur hone of the right leg. The trial court and jury were therefore confronted with the sole proposition as to whether the fracture of this femur bone was the result of the accident met with by plaintiff when she fell or stepped into the hole in the platform at Terry. That is the question we must face in determining whether the verdict and judgment are supported by the evidence, and whether the case was properly tried. The testimony of plaintiff herself, to repeat it very briefly, is that prior to falling into the hole she had met with no other accident, and had had no trouble with her limb, and was not lame, and that subsequent to this accident at the railroad platform she had not been hurt nor had she met with any accident that could have produced the injury. Plaintiff stands practically alone in her testimony, save as to the fact that she fell into the hole, that she subsequently was confined to her bed, that when she got up she was lame, and that her leg is shortened. On many matters, such as her previous health, her declarations and statements as to the immediate effect of the accident, and the like, she is contradicted by several witnesses. The fact that her leg — 407 — is broken and limb shortened, and that this fact was known at least since the examination made some few months before the trial by the three surgeons appointed by the court, is not disputed. Nor does plaintiff deny that at least until the morning following the accident, she went about her occupations and kept on her feet, with little noticeable change from her former walk. While plaintiff stands alone in testifying that she met with no other accident, the defendant has produced no witness to the contrary — no testimony showing any prior or subsequent accident. Plaintiff herself and every one of her witnesses examined on this point, as also a crowd of witnesses introduced on the part of defendant, testified that after the occurrence of the accident on the platform, the plaintiff got up out of the hole without assistance, walked from the station to her house, which was on the other side of the railroad track and some one hundred feet back from the track, there met her husband and young Age, ate her dinner with them, this being between 12 and 1 o ’clock of the 28th of December, and about two hours thereafter went from her house to that of her aunt. She remained at the house of her aunt several hours, until, as she says, between sundown and dark, and returned home and assisted in getting supper for the family. In going to or returning from the residence of her aunt, plaintiff was seen by several witnesses, her neighbors, as she crossed barrow pits or a barrow pit, alongside of the railroad track, which was spanned by a plank walk about 30 feet long. At places along this walk there was a twelve inch plank; at other places two twelve inch planks, with wooden trestles under them. One end of the walk rested on a stump two and a half feet above the ground, the other end rested on the railroad embankment. To get up on to this plank walk plaintiff was obliged to climb up this stump and then reaching the plank walk go along it to the other end. The plank walk at the time, according to the testimony, was slip-. — 408 — pery and muddy. Not one of the witnesses testifies to observing that plaintiff limped or walked at any different gait from that which was her habit. All testified that she walked her usual gait. At the time of the accident, plaintiff was about 28 years old and weighed about 165 pounds. We have set out the testimony so fully in the statement that we will not go over it further. During the period plaintiff was confined to her house or bed, about three weeks, she was attended by three physicians, whom she named. None of them were present or produced or examined at the trial. A couple of months before the trial, which was had in September, 1908, and at the instance of the defendant, the court appointed three surgeons to examine plaintiff, who conjointly examined her then, and subsequently, and a day or so prior to the trial, again examined her. These three surgeons testified unqualifiedly that if the femur hone or upper hone of the right leg was broken it would have been physically impossible for the plaintiff to have walked as she told them she had walked and moved about, and, basing their answers on facts embraced in hypothetical questions which covered the facts of her movements on the day of the accident, as testified to by all the witnesses, and on what she had herself told them, impossible for her to have walked, if she had broken the femur at the time stated. On hypothetical questions propounded to these three surgeons by counsel for plaintiff, they stated that there might have been a partial fracture at the time of the accident, and if that was a fact it might have been possible for this plaintiff to have done what she and all the witnesses testified that she had done immediately after the accident. But each of the surgeons who answered these hypothetical questions put by plaintiff’s counsel, testified that no such case of partial fracture as supposed had ever come under his observation, and that he had never heard of one, that is, — 409 — a partial fracture that without any intervening cause resulted in such a complete fracture as here present. These hypothetical questions of plaintiff’s counsel were objected to, hut allowed. We see no error in this action of the court. Plaintiff was entitled to have her theory of the case so presented to these experts. To meet the testimony of the surgeons, defendant asked an instruction which is numbered 11, and which we have given in full, it being to the effect that if the jury believe the statements of plaintiff about what she did after she received the injury to her leg, yet if they found that such statements were contrary to physical facts as those facts are in evidence, the jury should disregard her statements. In the case of Hook v. Missouri Pac. Ry. Co., 162 Mo. 569, 1. c. 580, 63 S. W. 360, it is said that a court will treat as unsaid by a witness that which in the very nature of things could not be said. In the case of Phippin v. Missouri Pac. Ry. Co., 196 Mo. 321, 1. c. 343, 93 S. W. 410, referring to many cases in which it had been held that where the established physical facts and common observation and experience conflict with the testimony of a witness, his testimony must yield and cannot be accepted as the basis of a verdict or judgment, the court says that these cases announce the law of this State so fully as to leave the question no longer open to debate or any doubt. To the same effect are the decisions in Champagne v. Hamey, 189 Mo. 709, 88 S. W. 92; Oglesby v. Missouri Pac. R. Co., 177 Mo. 272, 76 S. W. 623; Weltmer v. Bishop, 171 Mo. 110, 1. c. 116, 71 S. W. 167; Zalotuchin v. Metropolitan St. R. Co., 127 Mo. App. 577, 1. c. 584, 106 S. W. 548; Demaet v. Fidelity Storage & Packing Co., 121 Mo. App. 92, 1. c. 104, 96 S. W. 1045; Stafford v. Adams, 113 Mo. App. 717, 1. c. 721, 88 S. W. 1130; Reed v. Chicago & S. R. Co., 112 Mo. App. 575, l. c. 581, 87 S. W. 65; Spiro v. St. Louis — 410 — Transit Co., 102 Mo. App. 250, 1. c. 263, 76 S. W. 684. In tlie light of all the testimony in the case, we think that an instruction covering this should have been given. Furthermore, the burden is on plaintiff to show that the injury received is directly traceable to the alleged accident. Applying this latter rule, and the rule laid down in the decisions above cited, to the facts in this case, we are of the opinion that the jury should have had the cautionary rule announced in this eleventh instruction before them. The testimony of the surgeons certainly made it yery doubtful as to the possibility of the accident complained of having produced the injury under which plaintiff is unquestionably laboring and plaintiff then to have shown no immediate effects or to have been able to do as she did. In view of the testimony of plaintiff herself and the undisputed testimony of unimpeached and uncontradicted witnesses, it was a question of whether her actions were compatible with known physical laws, and the jury should have had an instruction on that line; defendant’s counsel were entitled to the aid an instruction along those lines would have given in their argument of the facts of the case. Many of the cases cited go much further than we are disposed to go in this case. There are cases wherein the appellate court went over the verdict of the jury and the finding of the judge. There was no refusal of instruction, as here, but the appellate court refused to accept a verdict which in its opinion was against known physical facts. We are reluctant to do that in any case. The verdict of a jury, properly instructed, is of great weight on that question. On the refusal to give an instruction along the line of this eleventh instruction, and having the facts of the case in mind, and in the light of the above authorities, we' cannot allow the verdict to stand. We are confirmed in our view that this verdict should not stand by the failure of the plaintiff to produce witnesses and offer testimony which must have — 411 — been under her control and which was of the highest importance. The fact stares us in the face, that immediately after the happening of the accident, plaintiff was under the care of three physicians, selected by herself; that after having had the benefit of their assistance and advice, she not only made no mention whatever of the fractured' bone when she drew up her petition, but has not seen fit to call those physicians as witnesses in her behalf. She could call them, the defendant could not. We think it was her duty to have produced their testimony or accounted for its absence. The vital question in this case was whether plaintiff had suffered a partial or complete fracture, or for that matter, any injury of the femur as the result of her fall. It is to be presumed that these physicians examined her sufficiently to determine whether she was then suffering from any injury to this femur. Certainly the young man Age should have been produced at the trial by plaintiff or his absence accounted for. Neither was done. He was an inmate of the house, a member of the family; was in the house when plaintiff came from the station immediately after the accident; he was presumably cognizant of all that transpired immediately upon the return home of plaintiff and for some time afterwards. In Reyburn v. Missouri Pac. R. Co., 187 Mo. 565, 1. c. 575, 86 S. W. 174, the failure of the railroad to produce as witnesses persons in its employ who were presumed to have-knowledge of the accident was held to be a strong circumstance against the defendant. That rule, in this ease, applies especially to the absence of the testimony of this young man Age. As against the failure to produce the physicians, otir Supreme Court in Evans v. Trenton, 112 Mo. 390, l. c. 404, 20 S. W. 614, distinctly held that the failure of plaintiff to call the attendant physicians as witnesses in• her behalf, “was a strong circumstance that they would not corroborate her testimony in regard to the extent of her — 412 — injuries, and defendant was justified in urging this upon the attention of tlae jury.” Our examination of authority leads us to thinlc that its great weight is to the effect that' the failure of the plaintiff to produce these surgeons, who, more than any one else, even the plaintiff herself, would have been qualified to testify as to the extent and nature of the injuries immediately following the accident, as well as the young man Age, is a circumstance that warrants us in entertaining serious doubt as to the good faith of the plaintiff. In 1 Starkie on Evidence, #p. 54, the general rule is stated to be that “the conduct of a party in omitting to produce that evidence, in elucidation of the subject-matter in dispute, which is within his power, and which rests peculiarly within his own knowledge, frequently affords occasion for presumptions against him; since it raises a strong suspicion that such evidence if adduced would operate to his prejudice.” So the rule is stated in 11 Am. and Eng. Ency. of Law (2 Ed.), p. 503, par. (2), and in the latter work it is stated, vol. 22, p. 1261 (c), that this rule has been applied where plaintiff, in an action for personal injuries, failed to call the physician who examined her shortly after the accident to testify as to the extent of her injuries. The authorities cited in support of this last are Cooley v. Faltz, 85 Mich. 47, and Vergin v. City of Saginaw, 125 Mich. 449. The Michigan statute covering the matter of testimony by a physician is practically identical with that of our own State. In the Cooley case it is said that the failure of the plaintiff to produce the physician who had attended her and who had examined and prescribed for her was a legitimate fact for the jury in determining the merits of the case. The same rule was applied in Ohio in the case of Katisfiasz v. Railway Co., 24 Ohio C. C. Rep. 127. It is announced as the law of the State in New York, in the case of Gordon v. The People, 33 N. Y. 501, and People v. Hovey, 92 N. Y. 554, as well as in Wennerstrom v. Kelly, 27 N. Y. Supp. 326. — 413 — These two latter cases were where there was a failure to call the wife who, in that state as in ours, is incompetent, generally, as a witness. It is true that the Supreme Court of the United States, in the case of G-raves v. United States, 150 U. S. 118, held to the contrary. But in a dissenting opinion in that case hy Mr. Justice Brewer he cites the above and other cases from Michigan, as also cases from Massachusetts, Maine, North Carolina and Georgia, as well as Starlde on Evidence, herein above quoted, all holding contrary to the views of the majority of the court. See also notes on page 582 (II. A.), 34 L. R. A. (old series) to case of Hay v. Peterson, 6 Wyo. 419, where many cases are cited in support of the rule, among others, that “to smother evidence is not much better than to fabricate it. ’ ’ The physician, in our State, cannot he examined hy the adverse party as to information acquired by him in the course of his professional employment, but his exclusion is a matter resting with the patient — a right she can waive. In the case at bar no instruction was asked by the defendant covering the absence or failure to produce these witnesses, but the point has been distinctly raised by counsel for the defendant in their assignment of error and in their brief and we mention it, not in decision of the case, but as support for the view which we take of it, that in connection with the physical facts which are testified to beyond contradiction, the absence of this testimony of these physicians, as well as of the young man Age, under the peculiar facts in this case, does make against the plaintiff. Our conclusion on the whole case is that plaintiff has fallen so far short of clearing up the case by evidence presumably within her power to produce, that while we do not feel warranted in saying there is no substantial evidence to sustain the verdict, we do think there is a lack of evidence to show that the injury is solely and directly traceable to the accident alleged. In fact this whole case, from the recitals in the original peti — 414 — tion down to the end of the trial, the apparent conflict between known physical laws and plaintiff’s own conduct, the failure to bring forward testimony and produce witnesses on the part, of plaintiff, without any explanation of that failure, along with refusal to instruct oh what we consider a vital issue, all contribute to render us so very doubtful of the righteousness and correctness of the verdict that we are unwilling to let it stand. It is accordingly set aside, the judgment reversed and the cause remanded. All concur.