Turnbow ex rel. Turnbow v. Kansas City Railways Co.

WILLIAMS, P. J. Plaintiff, an infant boy, three years of age, sues by bis next friend to recover for the loss of both feet. The injury is alleged to have been caused by the negligence of the defendant in the operation of one of its street cars upon a street crossing in the city of Independence, Missouri. Trial was had in the Circuit Court of Jackson County, at Independence, resulting in a verdict and judgment for plaintiff in the.sum of $30,000. Defendant has duly appealed. This is the second appeal. The opinion upon the first appeal is reported in 272 Mo. 53. No attack is made upon the sufficiency of the evidence to support a recovery. The evidence in the main is the same as upon the former appeal and is set forth in 272 Mo. at page 53 et seq. It is therefore unnecessary to restate the same here. Plaintiff’s instruction No. P-1, which was given, is as follows: “The court instructs the jury that if you believe and find from the evidence that on the 29th day of March, 1912, Paul Turnbow was a child about three years of age and that the said Paul Turnbow wandered or went upon Lexington Street in Independence, Missouri, and upon that part thereof east of Union Street and between the curb on the south line of Lexington Street and the car tracks of the defendant, and if you further believe and find from the evidence that at said time and place the street car in question was approaching a point opposite the place where said child was in said street, and if the jury further believe and find from the evidence that said child approached said car and came in contact therewith and his feet and legs were run over by the wheels of the hind truck thereof and — 650 — crushed and injured, so that it was necessary to amputate his feet, if you believe and find from the evidence that it was necessary to amputate them; and if the jury further believe and find from the evidence that the motorman operating said car saw, or, by the exercise of ordinary care, could have seen the said Paul Turnbow in said street and aproaching said car and in or approaching a place of imminent peril, if you believe and find from the evidence he was in said street and was approaching said car and approaching a place of imminent peril, in time, by the exercise of ordinary care and with reasonable safety to the passengers on the said car to have stopped said car and to have prevented the injuries to said Paul Turn-bow; and if you further believe and find from the evidence that said motorman could reasonably have anticipated that said child would be likely to approach and come in contact with said car and be injured thereby; and if you further believe and find from the evidence that said. motorman did not stop said car, after he saw, or by the exercise of ordinary care, could have seen said child in said street and approaching said car, if you believe and find from the evidence he was in said street and was approaching said car, and that said motorman saw, or by the exercise of ordinary care could have seen him there, and after he might reasonably have anticipated that said child would approach said car and be injured thereby, if you find that he should reasonably have so anticipated, but continued to run said car over and upon said tracks until the said Paul Turnbow was injured, as aforesaid; and if you further believe and find from the evidence that it was negligence upon the part of said motorman to so continue to run said car, if you believe and find from the evidence he did so continue to run it, and that the injuries to the said Paul Turnbow, if any, were caused bv said negligence of said motorman, if any, in so running said car, then your verdict should be for the plaintiff and against the defendant.” — 651 — Instruction No. 0-1 given by the court of its own motion is as follows: “The court instructs you that it is your duty in considering the evidence, deliberating upon and determining the facts in this case, to first decide upon the question as to whether under all the facts and circumstances there is or is not any negligence upon the part of defendant’s motorman, as defined to you by other instruction. Until this question of negligence has been determined by you, you have no right to take into consideration the nature, character or extent of the alleged injuries to plaintiff, or the amount, if any, that the plaintiff is entitled to recover, because of such injuries. If the plaintiff is not entitled to recover, that is, if he has not shown to your reasonable satisfaction by the greater weight of the credible testimony upon the question of liability that he should recover at your hands, then you should not and must not in your deliberation at all consider to what extent, if any, he has been injured. “Plaintiff was permitted to exhibit the stumps of his legs to you in order that you might see and consider them in determining the nature and extent of his injuries. You should not be influenced by the nature and extent of plaintiff’s injuries in deciding whether or not defendant is liable for said injuries, as explained to you in these instructions. “Neither passion, prejudice nor sympathy should influence you in any manner in deciding this case, for it is your sworn duty to try this case and decide it according to the evidence and the instructions.” When the ease was called for trial appellant filed a motion to quash the panel of eighteen jurors, summoned to appear at the Independence Division of the Circuit Court of Jackson County, for the reason that said jury “has not been drawn, selected, summoned and qualified in the manner and way provided by law. ’ ’ The panel thus sought to be quashed was summoned to appear before the said circuit court at the court — 652 — bouse in Independence, Missouri. This seems to have been the established practice in that regard, and had never before been questioned until the motion to quash was filed. By reading what was said then and what is now said in appellant’s brief we gather the idea that appellant’s objection to the panel was that it was not a part of a large panel which had originally been summoned to appear at one of the divisions of the circuit court of said county, there to be distributed in part to each division of said circuit court (including the nine divisions sitting’ at Kansas City and the one division sitting at Independence) as needed for jury use in the respective divisions — (as is provided, according to appellant’s contention, by Sections 7318 and 7323, Revised Statutes 1909). The court overruled the motion to'quash and thereupon plaintiff’s counsel made the following request: “.Mr. Brewster: In view of Mr. Dryden’s position that the eighteen jurors constituting this present panel are not properly drawn, or drawn according to law, and in view of the fact that the objection has never been made in any other' case, and the fact’that I represent a minor some six years of age, I am willing to try this ease so that there will be no question of any kind left in the record. I therefore ask the court, in view of Mr. Dryden’s motion, to send over to Kansas City and have a panel of eighteen men called to try this case.” Thereupon, and apparently with an intent to keep the above question out of the case, the court ordered the sheriff to bring twenty-three jurors from the large panel which had been originally summoned to appear at Kansas City. After some delay twenty-three -jurors from the large panel originally summoned to appear before a specified division at Kansas City were brought before the division of the court sitting at Independence. — 653 — Thereupon appellant filed a second motion to quash —this time directed at the twenty-three jurors brought from Kansas City. This second motion to quash was by the court overruled, but no exception was saved by appellants to the court’s ruling thereon, the record (bill of exceptions) showing what occurred upon the overruling of the second motion to quash being as follows: “The Court: The motion is overruled. “Mr. Dryden (Counsel for appellant): I want to make an application for continuance.” Such additional statement of facts as shall become necessary to an understanding of the issues will be made in connection with the points discussed. Jury I. Appellant seems now to complain of the court’s action in failing to use the original panel of eighteen jurors after he had first made an order overruling the motion to quash this panel. Appellant is certainly now in no position to complain of the action of the court in failing to use the first panel of eighteen, because this is the exact result (as to that panel) which appellant attempted to accomplish by his first motion to quash. The court (as to this first panel) having in effect done the very thing requested by appellant, appellant should not now be heard to complain. No exception having been saved to the overruling of the second motion to quash, it follows that the questions arising upon that ruling have not been properly preserved for review. Continuance. II. It is contended that the court erred in overruling appellant’s first motion for a continuance. Concerning this point it is sufficient to say, that appellant saved no exception to the overruling of the motion. — 654 — Misconduct of Juror. III. Neither did the court err in refusing to grant a new trial on the ground of misconduct on the part of one of the jurors. In the motion for a new trial appellant alleged that at some time before the verdict was rendered one of the jurors went down to the street crossing where the injury occurred. In support of this allegation the affidavits of one of appellant’s motormen and one of appellant’s conductors were attached to the motion. The affidavits state that on a certain evening after adjurnment of court they saw one of the jurors standing on the street near where the accident occurred and the juror stated that “he was down looking at the place;’’ that the affiant did not inform appellant of this fact until, after the verdict. It is extremely doubtful if this question has been properly preserved for review (See Feary v. St. Railway Co., 162 Mo. l. c. 106 and cases cited). But be that as it may we desire to make the following observations relative to the merits of the point made. There was no material dispute in the evidence concerning the location of the scene of the injury or of any of the dimensions of the street or of the location of the street car tracks. A large blue print was introduced in evidence by the appellant showing this Street crossing, the location of the tracks thereon, and of the adjoining and near-by buildings. The entire situation is shown so plainly by this blue print that it would appear that little additional information would be gained by a personal view of the situation. Under such conditions we are unable to see wherein appellant’s interest could in the least have been prejudiced by the conduct of the juror. Respondent’s counsel state in their brief that the scene of the' accident was necessarily passed each day by all the jurors in going to and from Kansas City and the Independence Court House. Whether or not this was true the record before us does not disclose, but it is true that the learned trial judge who passed upon — 655 — this question was familiar with the surrounding circumstances and he was also in a better position than we to determine what if any effect such conduct may have had upon the verdict. He overruled appellant’s contention in this regard, and the situation presented is not such as will warrant this court in saying that he abused a sound discretion in so ruling. The correct rule here applicable was stated in Dysart-Cook Mule Co. v. Reed, 114 Mo. App. 296, l. c. 307, as follows: “His (the trial court’s) ruling in such matters should be deferred to by an appellate court unless it substantially appears that he has erred in finding there was or was not misconduct on the part of one or more of the jurors.” CCross-Examination. IV.. The appellant offered as a witness upon this trial its motorman who was operating the car that injured plaintiff. Upon the first trial plaintiff had used the motorman as his witness. It also appears that the motorman’s deposition had been taken before the first trial. . Upon the present trial the motorman in his examination in chief stated that as he moved the car across the street where the injury occurred he last saw the plaintiff standing “right next to the curb.” Upon the cross-examination of this witness plaintiff’s counsel asked the witness in substance if he had not testified in his former deposition that he last saw plaintiff standing- between the curb and the car track a “few steps” or a “step or two” out from the curb. The location of the plaintiff when the front end of the car passed him was a very material issue upon the trial. The closer plaintiff, an infant three. years old, stood to the .tracks as the front end of the car passed, the greater would be the likelihood of. his coming-in contact with the rear trucks of the car. . It was therefore entirely proper as an impeaching question that the witness be asked if. on .a former occasion he had not sworn that he last saw the boy closer to the car than he now stated. — 656 — When the plaintiff’s attorney began to lay the foundation for impeaching this witness he said: “When your deposition was taken I will ask you if these questions were not asked you and if you didn’t give these answers?” Appellant’s counsel objected, stating that he didn’t want more than one question and answer in each question. The court then ordered plaintiff’s counsel to conform to the request. This was tried for two or three questions, the appellant interposing objections to each question. Plaintiff’s counsel objected to this manner of interfering with his cross-examination and the court ruled in effect that plaintiff’s counsel should first be permitted to ask his entire question and that then appellant could interpose such objections as he saw fit to the whole or any portion of the question. Appellant’s counsel objected to this, and the court said: “.Mr. Dryden, you understand I am making this ruling for the purpose of conducting this trial. Now I am going to permit the questions and answers to be read so that the jury will get the whole thing together in a connected form. Then if you want to call attention to what I have already said, permitting all the objections heretofore made to be considered as made to every single question and answer, I will permit you to move to strike out every single question and answer, but I will not, and I want you to understand it, I will not permit you to constantly interrupt the reading of this deposition.” (Plaintiff’s counsel was merely reading from the deposition as an aid in formulating the impeaching question.) Appellant now contends that this statement of the court constituted reversible error. We are unable to agree with this contention. It should be borne in mind that appellant’s counsel was not at this time offering in evidence a deposition but was merely laying the foundation for impeachment, — 657 — by asking 'him if be made certain answers to certain questions asked bim when bis deposition was taken. There were nine short questions and answers which when read together developed the former conflicting testimony which plaintiff claimed the witness had given. It is therefore apparent, that appellant’s counsel had no right to constantly interfere with plaintiff’s counsel in formulating his question. But the proper procedure was to first permit counsel for plaintiff to finish his entire question and then permit appellant’s counsel to interpose any objection he saw fit. The ruling 'of the court permitted this to be done and at the close of the entire question appellant was permitted to interpose its objections. Appellant’s rights were in no manner prejudiced by the court’s action in the above regard. Y. It is contended that the court erred in permitting plaintiff to exhibit his injured limbs to the jury. Exhibit to Jury. One of the facts at issue in the case was whether further amputations of the injured limbs would be necessary. The surgeon who performed the operation when plaintiff’s feet were amputated testified that the limbs were amputated just above the ankle joint and that due to the fact that the bone grew faster than the surrounding skin the bone now pressed against the skin at the place of amputation; that this was a frequent occurrence in cases of this kind among persons under eighteen years of age and that it would be necessary later to operate again on each leg and remove about two inches of the end of the bone. The doctor stated that the pressure of the end of the bone against the skin was plainly visible. Thereafter plaintiff’s injured limbs were exhibited to the jury in order that they might see the exact appearance of the end of the amputated limbs. We have no hesitancy in saying that the exhibition of the injured limbs to the jury did not constitute error. — 658 — The general rule is that evidence of this kind is admissible, when material to the issues, subject, however, to the right of the trial court in the exercise of a sound discretion to prevent unnecessary abuses in the offering of such evidence. [2 Wigmore on Evidence, sec. 1158 and numerous cases therein cited. See also cases cited in 5 Wigmore on Evidence (2 Ed.), sec. 1158; 17 Cyc. 292.] Amending Petition. VI. During the trial plaintiff was permitted to amend his petition by interlining the following words: “That on account of said injuries other and further operations will be necessary to he performed on Paui Turnbow’s legs.” Appellant thereupon filed a motion for a continuance alleging surprise, etc. The court overruled the motion for continuance hut at the time stated: “I think under the allegation of the petition as to permanent injuries, it was entirely competent to introduce the evidence of further operations. I will say this, Mr. Dryclen (Appellant’s counsel), that if you want the opinion of other physicians I will give you ample time in which to get the testimony of other physicians as to the necessity of further operations. The application for continuance is overruled.” (Italics ours.) Appellant’s reason for wanting a continuance as shown by the wording of his motion was in order to have time to “procure evidence to show that no such amputations or operations will be necessary.” There is no showing in this record that the time which the court offered to grant appellant was not sufficient for this purpose and we are therefore unable to say that the trial court abused its discretion in the matter. [Peterson v. Railway, 211 Mo. 498, l. c. 516-7.] The point is therefore disallowed. VII. We find no error in the giving or refusing of instructions. — 659 — Instructions. Instruction C-l (see instruction in statement of facts), given by the court of its own motion, was favorable rather than prejudicial to the appellant. We find corroboration of this view in the conduct of appellant’s learned counsel upon the trial. In his address jury (which is set forth in the bill of exceptions herein), we find that at that time he thought well enough of this instruction to read it to the jury as a part of his address. We concur with appellant’s first impression of this instruction and therefore disallow his present contention. Whether the plaintiff (had he lost below) could have based error upon this instruction we need not now pause to inquire. Plaintiff’s instruction P-1 (see statement) did not enlarge the allegations of negligence contained in his petition, as contended by appellant. Appellant contends that the word “anticipated” as used in the instruction enlarged the allegations of the petition. The petition among other things alleged “that by reason of the said negligence of defendant’s agents and employees in failing to stop said car or to control the speed thereof when plaintiff’s peril near the track over which its car passed was seen or by the use of ordinary diligence on their part might have been seen” etc. This was sufficient in scope to' include the meaning conveyed by the word “anticipated” as used in the instruction.-But even though appellant’s theory, that it enlarged the allegation of the petition, be conceded arguendo as being correct, yet by use of the conjunction “and” in the instruction the only effect of inserting the portion, now attacked, would be to place- an additional burden upon the plaintiff, of which the appellant would have no just ground for complaint. Another reason why the use of the word “anticipated” in the plaintiff’s instruction would not be error in the case at bar is, that appellant used'the same word and meaning in its instructions. Further complaint is made of the court’s action in refusing other instructions requested by the áp660 pellant. It would serve no useful purpose to copy the several instructions into this opinion. We have carefully examined the same and are clearly of the opinion that in so far as any of the appellant’s refused instructions contained correct statements of the applicatory law the same had' been fully covered by appellant’s instructions which were given. Remarks of Counsel. VIII. Appellant contends that the respondent’s counsel made improper and prejudicial statements in his argument to the jury. Appellant’s counsel in arguing the case to the jury, after mentioning* the fact that the motorman had denied that he had Ustifled in the manner shown by his deposition, called attention to the fact that the pages of the motorman’s deposition from which respondent’s counsel had read'did not correspond with the pages of the copy which he (appellant’s counsel) had kept. Respondent’s counsel thereupon asked appellant’s counsel if every question he had read to the witness were not also in the copy kept by appellant. To this appellant’s counsel replied: “I don’t know. I didn’t follow you. Now gentlémen (addressing the jury) that (the fact that the pages in the two copies of the deposition did not correspond) is a mighty singular thing.” (Parenthesis and italics ours.) In reply to appellant’s argument on the above point respondent’s counsel (addressing the jury later), said: “Now gentlemen, let’s be fair. A lawyer who tries to fool a jury makes the greatest mistake that can be made by a lawyer any time anywhere. Dryden knew as you saw when I was reading that deposition, Dryden kept interrupting me saying: ‘What page are you reading from? I can’t find the page: they seem to be numbered differently.’ I said ‘I will find it for you.’ You saw me find it for him, you saw me point out the page. You saw him bow his head, and say, ‘Yes, I have it now,’ and he made no objection that it was not in his deposition, and it was all in the deposition — 661 — that he had. Then why try to fool and flimflam and-bamfoozle a jury of Jackson County men? When lawyers get it into their heads that that is the way to try a law suit, to try to fool a Jackson County jury, just then will they learn the true purpose of their profession.” We are of the opinion that appellant is in no proper position to challenge the propriety of the above argument. It was provoked in a way by the argument of its own counsel in subtly insinuating that there was something wrong with the deposition. From the evidence we find no foundation for the insinuation that the deposition had been tampered with, and the above argument which was made in reply to such insinuation did not, we thing, go beyond the bounds of legitimate argument. IX. It is contended that the verdict is excessive. Excessive Verdict. The evidence shows that plaintiff, when three years of age, had both feet so severely crushed under the wheel of a street ear as to render necessary the amputation of both feet just above the ankle joints, and that later (by reason of the fact that the bone has grown faster than the skin) it will be necessary to perform further operations removing about two inches from the ends of.the bone in each leg. From the evidence it further appears that plaintiff is now able, with the aid of artificial limbs, to walk about and go to school, but that the use of the artificial limbs causes more or less pain and chafing of the limbs. We have, carefully reviewed the authorities in this State, as well as the many authorities cited in L. R. A. (N. S.) 1915F, at page 308 et seq., upon the question of excessive verdicts. A review of the authorities will at once convince the researcher that no definite general rule can be stated. Each case must, to a very large degree, turn upon its own facts. In the case of Farrar v. Railroad, 249 Mo. 210, l. c. 227, the injured person was a young married woman. — 662 — The injury sustained was the loss of a portion of the left lower leg and foot. The verdict was by remittitur ordered reduced by this court to the sum of $10,€00: In the case of Waldhier v. Railway Co., 87 Mo. 37, the injured person was a young man seventeen years of age. The injury sustained was the loss of the “lower extremities of both legs.” The verdict was ordered reduced by remittitur to the sum of $20,000. In the case of Markey v. Railroad, 185 Mo. 348, l. c. 364, damages for the loss of both legs below the knees by a man forty-five years of age were, by remitti-tur, ordered by this court reduced to the sum of $20,009. In some of the cases reviewed the court in arriving at the amount of remittitur has laid stress upon the fact that the instruction on the measure of damages told the jury that if they found for plaintiff they might allow damages not exceeding a certain amount (usually the amount asked in the petition). [Applegate v. Railroad, 252 Mo. 173, l. c. 202; Lessenden v. Railroad, 238 Mo. 147, l. c. 264.] In the case at bar, however, the instruction on the measure of damages does not contain the feature which has been criticised in the above line of cases. We find no case dealing with the exact situation we now have under review. The fact that the plaintiff was only three years old at the date of the injury and the further fact that an additional surgical operation will have to be made distinguish this ease from the Waldhier and Markey cases, supra, and from any other case which this court 'has been called upon to decide. The age of the injured person and the necessity of further surgical operations are undoubtedly elements which enter into the computation of the amount of damages, and while we are of the opinion that those elements.in the present case would justify a recovery of a greater amount than was permitted in the Waldhier and Markey cases, supra, we are still of the opinion that the additional features of the present case would — 663 — mot justify a recovery of $10,000 more tiran was permitted to stand in those cases. The whole matter carefully considered we are of the opinion that the present verdict for $30,000 is excessive by $5000. If, therefore, the plaintiff will, within ten days, enter a remittitur of five thousand dollars, the judgment will stand affirmed in the sum of $25,000; both the remittitur and affirmance to be as of the date of the original judgment; otherwise the judgment will be reversed and the cause remanded for new trial. All concur.