Fullerton v. Fordyce

Macfarlane, J. This is an action to recover damages on account of personal injuries received by plaintiff through falling into a hole in the platform of defendant at its station at New Madrid, Missouri. The ground of the action is negligence in not maintaining the platform in a reasonably safe condition, by reason of which, on leaving a train at said station, upon which he was a passenger, plaintiff fell into a hole and was injured. The answer was in substance a general denial and a plea of contributory negligence. The evidence tended to prove the negligence charged and the injuries sustained thereby. The trial resulted in a verdict and judgment for' plaintiff for $13,500, from which defendants appealed. • This is the second appeal. The result of the first will be found reported in volume 121 of the Missouri Reports, at page 7. A number of questions disposed of on the first appeal have been reargued, but on these — 526 — questions we see no reason for changing the views expressed on the former hearing and will not reconsider them. I. After the case had been remanded, in pursuance of a suggestion of this court, defendant applied to the circuit court for the appointment of a commission of competent and disinterested physicians to make a physical examination of plaintiff with a view of ascertaining the character and extent of his injuries. In compliance with the application the court appointed Drs. Harris, Tomlinson and Fraser to make the examination. Dr. Harris declining to act, an examination was made by the other two. In the trial the .parties examined as expert witnesses, physicians called by themselves respectively, but neither party called as witnesses those who had made an examination of plaintiff under the order of the court, until after defendant had closed his defense. At this stage of the proceedings plaintiff was allowed, over defendant’s exception to introduce and examine these witnesses. In granting the leave the court remarked in the presence of the jury: “The Supreme Court has indicated in this case that it would like to have this court appoint a commission; I have done so in response to that, and I will permit the commission to testify.” Defendants now insist that the court committed prejudicial error in permitting plaintiffs to examine these witnesses out of their regular order, and that the remarks of the court made in the presence of the jury were improper and prejudicial. There was no reversible error in permitting plaintiff to examine these witnesses out of their regular order. The circuit courts have a very broad discretion in regard to the order of admitting testimony, and their discretion will not be interfered with unless it clearly appears to have been abused. There was no abuse of discretion in this instance. These witnesses had made a physical — 527 — examination of plaintiff, under an order of court, with a view of ascertaining the character and effect of his injuries. They were appointed at the request of the defendants who neglected to use them as witnesses. Under the circumstances the court properly allowed plaintiff to introduce them after defendants had declined to do so. By the course adopted defendants secured the advantage of a cross-examination of witnesses who had aseértained facts under an order of court made at their request and they have no just ground to complain. Neither does it appear that the remarks of the court, on admitting the testimony could have been prejudicial. The commission was appointed by an order of court, which was a matter of public record. The appointment was made at the request of defendants for the purpose of eliciting the truth and in furtherance of justice. The information given by the court went no further than to advise the jury that the witnesses had made a physical examination of plaintiff by its direction, a fact which either party had the right to elicit from the witnesses themselves. Surely, defendants, at whose request the commission was appointed, should not complain of the information the jury incidentally acquired from the remarks of the court. Parties calling for such an examination must take the chances of the results. The experts who made the examination became the witnesses of the court, rather than of the parties to the action; and if the parties refused to call them the court had the right to do so, in which case greater credit would have been given them, than was given by the remarks complained of. II. It appears that Dr. Fraser, a member of the commission, had, at the request of plaintiff, previously made an examination of his injuries. It is insisted that the doctor could not, in the circumstances, have been wholely unbiased and disinterested. We do not think — 528 — the conclusion necessarily follows. We must assume that the court was advised of the character, professional standing and learning of Dr. Eraser and was satisfied with his qualifications to make the examination and that he would honestly and fairly testify to the results. But aside from that it was not shown that the court was informed at the time the commission was appointed that Dr. Eraser had any knowledge of plaintiff’s injuries. The witness, before detailing the result of his examination, informed the parties that he had previously made a physical examination of plaintiff, and no objection was then, or afterwards, made by defendants to his qualification. In the circumstances we must hold that defendants waived all objection to the qualifications of the witness to make a fair and unbiased examination. They took their chances on the result of the examination and can not be allowed to elect to accept it if favorable, and exclude it if unfavorable. In paragraph five of the opinion in this case, on the former appeal, it is held that, under the undisputed evidence in the case there was no reversible error in the third instruction. The same instruction was given on the retrial. Defendants still insist that the instruction is erroneous in that it assumes as a matter of law that the hole in the platform was unsafe and dangerous, and in that it did not allow them a reasonable time in which to make repairs. They say that the opinion is in conflict with one condemned in the case of James v. Railroad (107 Mo. 485), in which it was held to have been a question for the jury to determine whether it was negligence on the part of a railway company to construct and maintain a station platform of planks having auger holes through them from one and a half to two inches in diameter. In this case defendant’s agent in charge of the station, and others of its employees, testified that the hole in the platform was — 529 — sis feet long and eight inches wide, and that it was made by themselves in moving heavy freight, four days before the accident. The difference in the facts, under which the respective instructions were given, is manifest. The facts in this case stand virtually admitted by the evidence of defendant’s employees and are disputed by no witness. The simple question then is, whether defendants were guilty of negligence, as a matter of law, in leaving for four days, unguarded and unlighted, a hole,.of the character described, in their station platform, which was about four feet above the ground and over which passengers were required to pass on leaving trains. We thought they were on the first hearing and we are still of the same opinion. Defendants owed to the public the duty of keeping their platform in a reasonably safe condition. A failure to perform this duty was negligence. That the duty was not performed stands virtually admitted. It was said in the James case, supra, that the court could not assume “that it is negligence to permit a hole to remain in a railroad station platform.” The decision must be interpreted in the light of the facts upon which it was rendered. The “hole” the court had in mind was made with an auger and was only from one and a half to two inches in diameter, while the “hole” the court had in mind in this case, was eight inches wide and sisffeet long. Under the facts in the former case it was questionable whether the platform was not in a reasonably safe condition for the uses to which it was ordinarily applied; in the case at bar the dangerous condition of the platform is apparent to any reasonable mind. Defendants were undoubtedly entitled to a reasonable time in which to repair the platform and put it in a reasonably safe condition. What would be a reasonable time in any case will depend upon the character of the required work. — 530 — Defendant’s agents caused the defect and knew of its existence for at least four days before the accident. This was ample time in which to have made the trifling repairs necessary. The defect was dangerous and threatened every passenger who left the train, and due care required, at least, some kind of warning to them of the danger. None whatever was given though the train upon which plaintiff was a passenger, arrived in the night time. In the circumstances the negligence of defendants could properly have been declared as a matter of law. III. A number of physicians were examined as experts who gave to the jury their opinion as to the character, effect and permanency of plaintiff’s injuries. In respect to the weight to be given their evidence the court instructed the jury as follows: “With respect to expert testimony, or in other words the opinion of the doctors, you may take into consideration whether such opinions are supported or refuted by other testimony in the cause. You may also take into consideration the professional léarning, skill, ability and experience of such experts.” Counsel makes this instruction a basis for the argument of several propositions of law in respect to the admissibility of expert testimony and the necessary qualifications of a witness to testify as an expert. The competency of the witnesses to testify as experts was a question for the court to decide; the weight to be given to their testimony was to be determined by the jury. If, after an examination defendant was of the opinion that a witness was not shown to be competent to testify as an expert, objection should have been made to his competency at the time, and all the evidence given in support of his qualification should have been preserved in order that the appellate court could pass upon the exception. The qualification — 531 — of such witness can not be raised by an instruction directing the jury as to the weight to be given such evidence. It is argued that in no case should expert or opinion testimony be received except it be based upon facts clearly proved. The. legal proposition here asserted applies only to hypothetical questions put to an expert witness based upon the evidence. Even in such case it is not essential that the facts be clearly established. A sufficient basis for the opinion of an expert is established when the evidence tends to prove all the facts upon which the opinion is hypothecated. Russ v. Railroad, 112 Mo. 48. It may be agreed that the evidence of experts would be entitled to much greater weight and the result of trials would be much more satisfactory if the witnesses were disinterested and unbiased, as well as learned and skillful, but the same may be said of any other witnesses; if they would all speak the unqualified and unbiased truth justice would seldom fail. But witnesses, whether they testify to facts, or give their opinions as experts, are not always unbiased or truthful and the jury must determine the weight to be given to their evidence. Counsel say, and correctly, that expert testimony is admitted as a necessity and should always be received and considered with great caution. It is nowhere shown that the evidence introduced on this trial was not competent. The witnesses were all, so far as appears, respectable physicians and the subject was one which properly called for the testimony of experts. Such witnesses were called and examined by both parties, without objection, and, as heretofore said, there is no basis for the objection to their competency. If defendants thought the jury should have been cautioned in respect to the weight to be given to the testimony they should have asked an additional — 532 — instruction. In civil cases courts are not required to give instructions unless requested. We find no error in the instruction complained of. IY. Defendant insists with much earnestness that the court committed error in the instructions given to the jury in respect to the measure of damages. It is said that the fourth instruction assumes that the plaintiff suffered physical pain and inconvenience and mental anguish from his injuries. The instruction requires the jury to find that plaintiff suffered physical injuries from falling into the hole in the platform. The allowance of any damages is made to depend upon those facts. The jury was further instructed that in estimating the damages “you may take into consideration and account.......his bodily and mental pain, if you believe from the evidence such is the fact.” It must be agreed that the rule thus given for the guidance of the jury is not entirely clear, but the jury must have understood from it that they could only allow damages for such pain, physical and mental, as plaintiff actually suffered. But if plaintiff was injured, as charged, which fact the jury was required to find, there would be no reversible error in the instruction though physical and mental pain, as a result, was assumed. Pain is the natural result of such injuries as the evidence tends to prove plaintiff suffered, and may fairly be assumed to follow as a necessary consequence. Y. Defendants requested the court to instruct the jury that in order for plaintiff “to recover any damages in this cause for permanent injury or permanent mental suffering or physical pain he must show that he took proper and immediate steps to have his condition improved and did all that a prud.ent and careful person would have done to have his injuries cured and himself restored to good condition of health.” The court refused to give this instruction, and correctly. An — 533 — injured person should use reasonable care to prevent an aggravation of his injuries and will not be allowed to recover compensation for such as could have been avoided by the exercise of such care and prudence. Aggravation of injuries by subsequent negligent conduct on the part of plaintiff may be considered by the jury in mitigation of damages. But to require one who has been injured to take proper and immediate steps to prevent future consequences is demanding of him a degree of care and an infallibility of judgment which the most skillful physician does not possess. The law requires nothing so unreasonable. The court, on its own motion, instructed the jury on this question as follows: “If you believe from the evidence that his injuries have been aggravated and his pain and suffering enhanced by his own imprudence or want of ordinary care, then for such increase of pain, or for such aggravation of injury, he can not recover.” This instruction declares the correct principle of law as far as it goes. If defendants had wished to have the jury instructed in respect to the duty of plaintiff in the matter of caring for his injuries a proper instruction should have been requested. The duty of plaintiff can, however, be very easily inferred from, the instruction given. VI. . We have considered the evidence, and the instructions on the question of damages very carefully in view of the large amount of the verdict, in order to see if anything appeared therefrom to indicate that the verdict was the result of passion or prejudice. The evidence shows that the injuries were not at first regarded as being serious, but that the condition of plaintiff has continued to grow worse until, according to the evidence of some of the physicians who examined him, and that of plaintiff himself, he suffers from incontinence of urine, injury of the spine, insomnia, impairment of memory, loss of sexual powers and hernia. — 534 — The evidence tends also to prove that plaintiff’s physical and mental condition is the result of the injury complained of, and that the injury to the spine is permanent and progressive. If the facts testified to were believed by the jury, and if the opinions of the expert witnesses were accepted as correct, and these were matters for the jury to determine, then we can not say that the amount of the verdict shows conclusively that it was the result of passion, prejudice or sympathy of the jury. This is the second verdict on substantially the same evidence, the first was for $15,000. Each of the verdicts was approved by the trial court and this court has no power to interfere with the result of the trial for the reason alone that the verdict appears to us to be larger than is justified by the evidence. The judgment is therefore affirmed. All the judges of this division concur.