Opinion
February 1, 1929.
1. WITNESS: Interest: Credibility. It is not error to permit defendant, on cross-examination, to ask a physician, a witness for plaintiff in a personal injury case, if he was a witness in a certain other case, and if the attorney for the plaintiff was the attorney in that case. Such evidence tends to show the relation existing between the witness and the attorney, and is for the consideration of the jury as tending to show bias and interest and thereby as affecting the credibility of the witness.
2. INSTRUCTION: Burden of Proof: Specific Negligence: Res Ipsa Loquitur. Where the petition charges specific negligence, the rule of res ipsa loquitur does not apply, and an instruction telling the jury that the burden of proof is upon plaintiff is not error.
3. ____: Argumentative: Misleading. In an action for damages in which plaintiff alleged that, when the street car stopped at the southwest corner of an intersection, she attempted to alight and was thrown and rendered unconscious by the sudden starting of the car as she was stepping from the platform to the step, and wherein a witness for defendant testified that fifteen minutes later he found her lying in the street at the northeast corner and unconscious, an instruction for defendant telling the jury that if they were unable to determine how the plaintiff was injured, "or if you are convinced that she fell not on the southwest corner, but on the northeast corner, and under circumstances in which a street car was not involved, then, of course, the plaintiff has failed," etc., is argumentative, features the fact that plaintiff was found on the northeast corner, and assumes that plaintiff claimed to have fallen at the southwest corner (notwithstanding the record is silent as to any such claim), and makes the case turn on the place where she fell, and was calculated to mislead the jury, and was prejudicial and erroneous.
Corpus Juris-Cyc. References: Appeal and Error, 4 C.J., Section 3015, p. 1032, n. 36. Carriers, 10 C.J., Section 1479, p. 1094, n. 21. Evidence, 22 C.J., Section 813, p. 724, n. 1. Trial, 38 Cyc, p. 1600, n. 51.
Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.
REVERSED AND REMANDED.
E.H. Wayman for appellant.
(1) A witness cannot be impeached on a collateral or immaterial matter. State v. Baker, 296 Mo. 56; Wojtylak v. Coal Co., 188 Mo. 289; Hamburg v. Rinkle, 164 Mo. 409. (2) An instruction which unduly comments on the evidence or usurps the province of the jury is erroneous. Laible v. Wells, 296 S.W. 429. (3) An instruction which exceeds the issues as formed by the evidence, and having no evidence in the case to support it, is erroneous. Foster v. Davis, 252 S.W. 437; Chaar v. McLoon, 304 Mo. 246; Beard v. Railroad, 272 Mo. 154; Clark v. Construction Co., 204 S.W. 65; State ex rel. v. Daues, 284 S.W. 463; Retlia v. Salomon, 308 Mo. 680. (4) An instruction which assumes a fact as proved is erroneous. Dixon v. Cons. Co., 298 S.W. 832; Ganey v. Kansas City, 259 Mo. 663; McMillan v. Bausch (Mo. Sup.), 234 S.W. 837. (5) An instruction placing upon plaintiff the burden of proving a case by the preponderance of the evidence is improper and erroneous where the doctrine of res ipsa loquitur applies. Carlson v. Auto Transit Co., 282 S.W. 1037; Price v. Railway, 220 Mo. 435; Olson v. Railway, 152 Mo. 426; Porter v. Heating Power Co., 277 S.W. 913; Boom v. Light Power Co., 251 S.W. 414. (6) This case is a res ipsa loquitur case. Lammert v. Wells, 282 S.W. 487.
T.E. Francis and W.H. Woodward for respondent.
(1) The petition did not rely upon the res ipsa loquitur doctrine, but upon an assignment of specific negligence. Even though the instruction involved did not place the burden of proving negligence upon the plaintiff, it might have well done so, and it would not have been error. Stolovey v. Fleming, 8 S.W.2d 832. (2) An instruction which is the converse of plaintiff's instruction is not erroneous simply because it directs a verdict for defendant if the accident happened in some other way than that relied upon by plaintiff. Such an instruction is not a roving commission. Taylor v. Wells, 7 S.W.2d 424; Tawney v. Rys. Co., 262 Mo. 602. (3) One of the ways to impute bias to a witness is to show that he is in the employ of one of the litigants, or their attorney, or to show that the witness has been acting as a medical assistant to the attorney and then has assumed the role of a presumably impartial witness or expert. Schwartz "Trial of Automobile Accident Cases" (1928), sec. 172; 5 Jones on Evidence (2 Ed.) 4604, 4613; Huss v. Bakery Co., 210 Mo. 57; 2 Wigmore on Evidence, secs. 948-9.
An action for damages in the sum of one hundred thousand dollars for personal injuries. Plaintiff claims that at about eight o'clock A.M. on November 3, 1923, she boarded, as a passenger, an eastbound Hodiamont car of the defendant at the intersection of Cabanne and Hodiamont, in the city of St. Louis; that she remained on the car until about 8:30 A.M., at which time it arrived at its usual stopping place at the southwest corner of Seventh and Locust Streets; that when the car stopped, she attempted to alight by the front entrance, and as she was stepping from the platform of the car to the step preparatory to stepping to the street, the car gave a jerk and she was thrown, striking her head, which rendered her unconscious. At about 8:45 A.M. of the same day T.N. McLemore, a witness for the defendant, was walking north on Seventh from Olive to Locust. As he neared Locust he saw the plaintiff lying in the street at the northeast corner of the intersection. "An old lady was trying to pick her up." He and a negro man assisted in carrying her into a near-by drug store. Plaintiff was taken to the City Hospital, where she regained consciousness about noon that day.
The negligence charged in the petition was that while plaintiff was leaving the car and before she stepped therefrom to the street, the agents of the defendant carelessly and negligently moved the car, thereby causing her to be injured. The answer, after admitting the appointment of defendant as receiver, was a general denial. Trial was had before the court and a jury. Judgment was for the defendant, and the plaintiff appealed.
I. Plaintiff assigns error in permitting the following cross-examination of Dr. Paugh by defendant: "Q. Witness in You are the same doctor who was the doctor in the Another Case: Rosenweg case, aren't you? (Objection.) "Q. Credibility. Weren't you the physician in the Rosenweg case, Doctor? A. Yes, sir.
"Q. Mr. Wayman was the attorney in that case, too? A. Yes, sir.
"Q. You testified in that case? A. Yes, sir."
The evidence tended to show the relation existing between the witness and the attorney and was for the consideration of the jury as tending to show bias and interest and thereby affecting the credibility of the witness. [Schwartz' Trial of Automobile Cases (1928) sec. 172; 5 Jones on Evidence (2 Ed.) 4604, 4613; 2 Wigmore on Evidence, secs. 948, 949.] The contention is overruled.
II. A single instruction, consisting of four paragraphs, was given at the instance of the defendant.
(a) The second paragraph of which is as follows:
"Now, in determining this issue, you must be guided by certain fundamental rules of law. In the first place, you are confined to the allegations made by the plaintiff, and Specific Negligence: the burden is upon her to prove those Burden of Proof. allegations by the greater weight or preponderance of the evidence — that is, by evidence which, in your judgment, outweighs other evidence and circumstances in the case."
Plaintiff insists the court was in error in placing the burden upon her, for the reason the doctrine of res ipsa loquitur is applicable. The negligence charged is as follows:
"While said car was stopped at said intersection for the purpose of allowing passengers to alight therefrom, plaintiff attempted to and was in the act of leaving said car at the front door thereof, and while plaintiff was so in the act of leaving said car and before plaintiff had stepped therefrom onto the street, the agents and servants of the defendant in charge of and operating said car, as aforesaid, carelessly and negligently caused and permitted said car to start."
This allegation charges specific negligence. [Stolovey v. Fleming, 8 S.W.2d Syl. 3, 832; Price v. Met. Street Ry. Co., 220 Mo. 435, l.c. 454, 119 S.W. 932.]
(b) The third paragraph of the instruction is as follows:
"If, after fairly viewing all of the evidence and circumstances in the case, you are unable to determine how the plaintiff was injured, if she was, or if you are convinced Argumentative that she fell not on the southwest corner, but and Misleading. on the northeast corner, and under circumstances in which a street car was not involved, then, of course, the plaintiff has failed to meet the burden which the law places upon her and your verdict must be for the defendant."
Plaintiff challenges the italicized part of the above paragraph. This part of the instruction is argumentative, features the fact that the plaintiff was found on the northeast corner, and assumes the plaintiff claimed to have fallen at the southwest corner notwithstanding the record is silent as to any such claim. Thus the court makes the case turn on the place in the street where she fell. The requirement that she must have fallen "under circumstances in which a street car was not involved" does not cure the error. This requirement as connected and worded is calculated to mislead the jury and is prejudicial.
There are other criticisms of the instruction, but we regard them as without substantial merit.
For the error noted the judgment is reversed and the cause remanded. All concur.