Muth ex. of Reuter v. St. Louis & Meramec River Railroad

BLAND, P. J. The court, over objections of appellant, admitted evidence of the fact that the hospital where respondent was treated had tendered to him a bill of twenty-seven dollars, as due to it for its services, and that the physician’s bill of forty dollars for his services had been rendered, but that neither of them had been paid. The contention is that under the allegation that plaintiff “was compelled to expend large sums to hospital for care and nursing at a hospital and was compelled to expend and lay out large sums for medical attendance and medicines,” proof of a liability incurred but not discharged, was not admissible. In Pritchet v. Boevey, 1 Cr. & M. 775, in an action for trespass and false imprisonment, it was ruled that under one allegation, that the plaintiff had been found to pay a large sum of money for costs and attorney’s fees, proof of actual payment was necessary and that proof of liability to pay did not support the allegation. In McLaughlin v. R’y Co., 113 Cal. 590, a personal injury case, it was held that where the complaint avers that plain — 433 — tiff has necessarily expended in doctor’s bills, $750, proof that he had incurred a liability to pay that sum to his doctor was inadmissible. The averments of a petition give notice to the opposite party of what he is called on to meet or defend against. Evidence that is relevant to these averments, that is, evidence which tends to prove one or more of them, is admissible; while it is an unwavering rule that evidence which does not have such a tendency is not admissible. Rutledge v. Mo. Pac. R. R. Co., 110 Mo. 312; Utassy v. Giedinghagen, 132 Mo. 53; Wilson v. Albert, 89 Mo. 537; Lenox v. Harrison, 88 Mo. 491; Harrison v. Mo. Pac. R. R. Co., 74 Mo. 364; Madison v. Danville Mining Co., 65 Mo. App. 564; Halpin Mfg. Co. v. School Dist., 54 Mo. App. 371; White v. Chaney, 20 Mo. App. 389. Evidence which tends to prove that one has incurred a liability does not in the remotest degree tend to prove that he has paid that liability, hence, the evidence admitted by the court that respondent .had incurred a liability to a hospital and to a doctor, was not relevant to any issue made by the pleadings, and should not have been admitted. To have authorized the admission of the evidence, the petition should have alleged that the liabilities had been incurred. Pritchet v. Boevey and McLaughlin v. R’y Co., supra; Robertson v. R’y Co., 152 Mo. 382; Morris v. Garland, 144 Mo. 500; Duke v. R’y Co., 99 Mo. 347. II. To the admission of the evidence of respondent that his memory had been impaired in consequence of the injury, the appellant objected on the ground that this injury was not specially pleaded, and saved an exception to the ruling of the court in overruling its objection. The evidence was inadmissible for two reasons. Eirst. The respondent specified the particular injuries resulting from the accident. Loss of memory — 434 — 'is not one of them. In this state of his pleadings, respondent was precluded from recovering for or introducing evidence of injuries other than those particularly stated in his petition. Ravenscraft v. Mo. Pac. R’y Co., 27 Mo. App. 617; Pinny v. Berry, 61 Mo. loc. cit. 366; Slaughter v. Railroad, 116 Mo. loc. cit. 275, and cases cited; Schneider v. Mo. Pac. R’y Co., 75 Mo. 295; Railroad v. Measles, 81 Tex. loc. cit. 632 (S .C. 29 S. to Ref. 1121). Second. The evidence was inadmissible for the reason that loss of memory was not necessarily implied as a result of the injury, and unless specially pleaded, no recovery could be had therefor. Barrett v. Western U. Tel. Co., 42 Mo. App. 542; Railroad v. Measles, supra; Sedgwick on Damages (8 Ed.), sec. 1170. “Special damages are required to be stated in the declaration for notice to the defendant and to prevent surprise at the trial,” says Mr. Sutherland in volume 1, section 420, of his work on Damages. III. Some of the witnesses for respondent were, over the objection of appellant, permitted to give their opinions of the speed of the car at the time of the accident, who showed from their evidence that they had never had any experience in operating such cars; had travelled very little on them and had paid no attention to the speed at which they ordinarily run. While, as to ordinary matters that come under common observation, a non-expert witness may give an opinion, yet, the witness should be able to show that he has some knowledge, some familiarity with the subject about which he is called on to give an opinion, before he is permitted to testify to that opinion. IV. Appellant complains of instruction No. 1 given for respondent on account of the following paragraph found in the instruction, to-wit, “the highest degree of care which would be expected of very prudent persons under like or similar cir — 435 — cumstances.” The contention is that the instruction “imposed on appellant the highest degree of care which would ordinarily be expected of very prudent persons under the like or similar circumstances, and makes the carrier an insurer; the word expect indicates nothing definite.” Carriers of passengers are bound to the utmost care and skill which prudent men are accustomed to use in like or similar circumstances. Joequin v. Grand Ave. Cable Co., 57 Mo. App. 320. As expressed in Clark v. R’y Co., 127 Mo. 205, they are bound to “the highest degree of care of a very prudent person in view of all of the facts and circumstances at the time of the alleged injury.” We find the same rule expressed in many cases decided by the Supreme Court. Among them the following are cited: Sweeney v. Railroad, 150 Mo. 385; Bailey v. Railroad, 148 Mo. 134; Barth v. Railroad, 142 Mo. 550; O’Connell v. Railroad, 106 Mo. 484; Furnish v. Railroad, 102 Mo. 438; Lister v. Railroad, 88 Mo. 55. Appellant’s criticism of the word “expect” as used in the instruction is not justifiable; in view of the stringency of the rule, the word is not so strong or expressive as the word, “utmost,” which has been approved when used in the same connection in defining the degree of care the law requires the carrier of passengers to exercise. V. There was no error in instructing the jury that respondent was a passenger for hire. The uncontradicted evidence is that he handed the conductor a silver dollar, for the purpose of paying his fare, and that while he was waiting for his change he. was hurled from the car into the street, and there is uo evidence that the dollar was returned to him or' to any one for him with his knowledge or consent. VI. Eor the reason stated in paragraph I of this opinion, instruction No. 5 given for respondent, permitting a recovery for respondent’s liability to a hospital and physician, should — 436 — not have been given. VII. Instruction No. 3 as asked by appellant precluded a recovery if respondent was guilty of negligence, irrespective of the fact that sueh negligence did or did not contribute to his injury. This instruction as modified by the court instructed the jury that the negligence to be available as a - defense must have contributed to the injury. This was unquestionably correct ; it is not mere negligence, but contributory negligence that is available as a defense in this class of actions. Instruction “B” asked by appellant and refused by the court, is covered by instruction No. 3 as modified by the court. Refused instruction “A” contains the same vice as instruction No. 3 asked by appellant, and was properly refused. The error in admitting evidence that respondent’s memory had become impaired in consequence of the injury was not carried into the instruction given on the measure of damages, but the jury were confined, in estimating the damages, to the special injuries alleged in the petition and to respondent’s liability for medical services and hospital care. This error was, therefore, non-prejudicial, as it should be presumed that the jury confined themselves to the instruction and did not go beyond its limits to find elements of injury upon which to estimate the damages. Nor was error in admitting the evidence of the incompetent witnesses as to the speed of the car, prejudicial; for the physical facts prove beyond peradventure that the car was running at an extraordinary and extremely dangerous speed at the time and place of the accident. The error of admitting in evidence and of submitting to the jury to find the amount of respondent’s liability for medical services and hospital care, may be cured by a remittitur of those amounts, since the evidence definitely fixed these sums in the aggregate at sixty-seven dollars. Eor the reason that the errors noted are non-prejudicial — 437 — (should sixty-seven dollars be remitted), and from the fact that the evidence clearly shows that the appellant’s motorman was guilty of the grossest negligence, indicating either' a want of knowledge and skill in the conduct of the business for which he was employed, or a reckless disregard for the lives and safety of the passengers on the car, which negligence caused the injuries complained of by respondent, we conclude that the judgment is for the right party and should be affirmed, if the respondent shall remit sixty-seven dollars of his judgment. It is therefore ordered that if within ten days the respondent remit sixty-seven dollars of his judgment, the same shall stand affirmed as modified by the remittitur. Otherwise the judgment shall stand reversed and the cause remanded. It is further ordered that respondent pay the cost of the appeal, including seventy-six dollars for printed record furnished by the appellant All concur; Goode, J., in- separate opinion.