Summary
In White v. St. Louis Public Service Co., Mo.App., 249 S.W.2d 498, 502, the treating physician, when asked for his opinion as to permanency, said: "I feel it is permanent" and when asked if it would continue for the remainder of her life, replied: "I think it will".
Summary of this case from Settell v. HorganOpinion
No. 28265.
May 20, 1952. Rehearing Denied June 27, 1952.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, F. E. WILLIAMS, J.
Sanford E. Wool, St. Louis, for appellant.
Mattingly, Boas Richards, Lloyd E. Boas, St. Louis, for respondent.
This is an action for damages for personal injuries sustained by plaintiff, Mattie White, while in the act of boarding a bus owned and operated by defendant St. Louis Public Service Company.
Tried to a jury in the Circuit Court of the City of St. Louis, a verdict was returned in favor of plaintiff, and against defendant, for the sum of $1,100. Defendant thereupon filed its motion for a new trial, which was sustained by the court and the verdict set aside. Plaintiff gave notice of appeal from the order so entered, and by proper successive steps has caused the case to be transferred to this court for our review.
The case was brought and submitted upon the theory of res ipsa loquitur, the charge being that plaintiff had been injured as the consequence of the bus starting forward with a violent and unusual jerk which had caused her to be thrown to the floor of the bus.
The answer was in effect a general denial coupled with a plea that plaintiff's own negligence in attempting to board the bus while the same was in motion had directly contributed to her injury.
According to plaintiff's version of the facts, as the bus approached the corner where she expected to board it, the operator did not bring it over to the sidewalk where she was standing, but instead merely slowed it down some distance out in the street and invited her to enter with the admonition that he was "turning in". She left no doubt in her testimony that the bus was never brought to a complete stop, although its speed was reduced to the point that it was going "very slow". She had stepped up onto the first step of the bus with her right foot, and was in the act of raising her left foot to place it upon the second step, when the operator "pulled it up fast", producing what she termed a "snatch", and causing her to be "snatched" down upon the floor. Asked if by saying that the operator "snatched" the bus, she meant that he caused it to jerk, she explained that what she meant was that "he pulled it fast", and that "the snatch is what throwed me down when it went off fast."
In instruction No. 1 (plaintiff's verdictdirecting instruction) the jury were told that if they found that the bus "started forward with a sudden, violent jerk or jar in an unusual manner", as a consequence of which plaintiff was thrown forward and injured, then such facts were sufficient circumstantial evidence to warrant a finding that "defendant did not exercise the highest degree of care for plaintiff's safety and was thereby negligent."
In its motion for a new trial defendant set up by ground 10(a) that the court had erred in giving such instruction for the alleged specific reason that it did not properly hypothesize the evidence in that it required a finding that the bus had "stared forward", whereas the evidence had been to the effect that the bus had never stopped but had continued in motion at all times.
The court sustained the motion upon such ground, and the correctness of its order is assailed on this appeal.
We agree with plaintiff that there was no proper basis for holding the instruction erroneous upon the specific objection leveled against it.
To begin with, the language of the instruction that the bus "started forward" with a sudden, violent jerk or jar would not in all events imply that it was started forward from a position where it was at an absolute standstill, but might as well be taken to mean that it was started forward in the sense of its speed being suddenly accelerated from that where its movement had been "very slow." Such an interpretation would make the instruction conform to plaintiff's testimony, which, as we have pointed out, was all to the positive effect that the bus was never stopped but was slowly moving at the time the jerk occurred when the operator "pulled it up fast". With plaintiff's testimony unequivocal upon this feature of the case, and in the absence of any evidence whatever to the contrary, there could be no justification for holding the instruction erroneous because of the employment of language, which, even though it might have been equally applicable to either of the two situations indicated, could not possibly have misled the jury or have affected the result, where the evidence was clear and undisputed regarding the movement of the bus at the time the accident is alleged to have occurred.
Furthermore, any question of whether the bus was at a standstill or in motion when plaintiff attempted to board it was not an element of her cause of action. On the contrary, the gist of her complaint was the alleged jerk or jar which caused her to fall and sustain her injury, and for which, if the jerk or jar was established, defendant would in any event be liable irrespective of the prior situation of the bus.
As a matter of fact, defendant makes no pretense of supporting the action of the court in holding the instruction erroneous for the reason the court gave in granting the new trial. Instead defendant now argues that the instruction was improperly given for two entirely different reasons, the one, that there was no evidence to warrant the submission of the question of a sudden, unusual, and violent jerk or jar of the bus; and the other, that plaintiff's own evidence showed precisely what had caused her injury so as to have deprived her of the right to submit the case upon the theory of res ipsa loquitur.
The trouble is, however, that the state of the record does not permit us to consider whether the instruction is vulnerable to both or either of such additional objections. This for the reason that counsel who prepared the motion for a new trial not only elected to attack the giving of the instruction with particularity, but also in so doing confined the criticism of the instruction to the one single matter which we have already discussed and have found unavailing. In this situation any question of error in the instruction may not be extended on appeal beyond the assignment made in the motion for a new trial; and the points which are attempted to be raised for the first time in this court are consequently beyond the scope of our review. Sterrett v. Metropolitan Street Railway Co., 225 Mo. 99, 123 S.W. 877; Mitchell v. Russell, Mo. App., 170 S.W.2d 137; Newkirk v. City of Tipton, 234 Mo. App. 920, 136 S.W.2d 147.
But notwithstanding the fact that our consideration of instruction No. 1 is restricted to the single specific objection to which the lower court's attention was called in the motion for a new trial, the language of ground 10 of the motion was broad enough to permit our review of any question of error in any of the instructions other than instruction No. 1. Sterrett v. Metropolitan Street Railway Co., supra. Furthermore, even though the award of a new trial cannot be sustained upon the ground specified by the lower court as the basis for its ruling, defendant is nevertheless entitled to urge any other matter preserved in the motion which might constitute good reason for affirming the order. Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678; Sakowski v. Baird, 334 Mo. 951, 69 S.W.2d 649; Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739.
Defendant argues in this connection that instruction No. 6 was prejudicially erroneous.
This instruction told the jury that if they found the facts and issues to be as required in instruction No. 1, and found from the evidence and all legitimate and reasonable inferences that reasonable men might be expected to draw that defendant had failed to exercise the highest degree of care for plaintiff's safety, then plaintiff had met and carried the burden of proof required of her by the law and the instructions in the case. The instruction further charged the jury that defendant's negligence need not be proved by direct testimony, but might be inferred from the facts and circumstances in evidence.
The criticism of the instruction is that it gave the jury a roving commission to infer negligence from facts and circumstances other than those actually submitted, and in addition had the effect of imposing upon defendant the duties and obligations of an insurer.
Substantially the same objections have been heretofore considered and disallowed upon appellate review of instructions substantially the same as instruction No. 6. Read in connection with instruction No. 1 to which it specifically referred, instruction No. 6 must be taken as having confined the jury to the question of whether the bus had started forward with a sudden, violent jerk or jar, and not as having given them a roving commission to find that defendant had been guilty of negligence in any other respect. Furthermore, defendant is wrong in assuming that the instruction failed to require a finding of an unusual occurrence, and thereby imposed upon it the status of an insurer. The instruction distinctly required the jury to find that the bus had started forward with a sudden, violent jerk or jar "in an unusual manner." Both by reason and precedent there was no error in the instruction which would support the order granting a new trial. Venditti v. St. Louis Public Service Co., Mo. Sup., 240 S.W.2d 921; Davis v. Kansas City Public Service Co., 361 Mo. 61, 233 S.W.2d 679.
Finally defendant charges error in the giving of instruction No. 11 on the measure of damages, the contention being that there was no evidence to support the submission of the elements of future pain of body and anguish of mind; impairment of plaintiff's power to work in the future; and permanent injuries. It seems to be the latter with which defendant is primarily concerned.
We need not recite the details of the evidence which amply warranted the submission of the question of whether plaintiff might reasonably be expected to suffer future pain and impairment of her power to work. The only consequence of the matters which defendant points out in such connection would be to minimize the severity of such complaints.
As for the question of whether there was evidence of permanent injury, the record reveals that when the physician who had treated plaintiff for her injury was asked for his opinion, he answered, "I feel it is permanent". When asked later whether plaintiff's condition as it was then shown to exist would continue for the remainder of her life, he replied, "I think it will". Such evidence justified the inclusion of the element of permanent injury. Smith v. St. Louis Public Service Co., Mo.App., 235 S.W.2d 102; Fuller v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 675.
It follows that the order of the circuit court sustaining defendant's motion for a new trial should be reversed and the cause remanded with directions to reinstate the verdict of the jury and the judgment rendered thereon. It is so ordered.
ANDERSON and RUDDY, JJ., concur.