Opinion
No. 27943.
December 19, 1950. Motion for Rehearing or to Transfer to Supreme Court Denied January 19, 1951.
APPEAL FROM THE CIRCUIT COURT FOR THE CITY OF ST. LOUIS, WILLIAM H. KILLOREN, J.
Carroll J. Donohue, and Salkey Jones, all of St. Louis, for appellant.
Edw. W. Fredrickson, Paul H. Koenig, and Wm. L. Mason, Jr., all of St. Louis, for respondent.
This is an action by Linda Mae Naylor, as plaintiff, against the defendant, St. Louis Public Service Company, to recover damages for personal injuries alleged by plaintiff to have been sustained on June 5, 1947, while a passenger on one of defendant's streetcars. The trial in the circuit court resulted in a verdict for plaintiff in the amount of twelve thousand five hundred dollars, which was reduced to seven thousand five hundred dollars by a remittitur by plaintiff of five thousand dollars, in response to an order of the circuit court.
Plaintiff sought recovery under the res ipsa loquitur doctrine. After formal allegations, the petition alleged that "while she was a passenger on a southbound streetcar of the defendant's Cass line, from which she intended to alight at the regular stopping place therefor at Eighth Street and Market Street, in the City of St. Louis and State of Missouri, she took a position opposite the regular exit door therefor; and after the said streetcar had come to a stop at said regular stopping place therefor, and was motionless, she started to leave the said streetcar through the said regular exit door; that while she was in the act of passing through the said door, and stepping to the street, the said streetcar suddenly moved; directly due to the negligence of the defendant; directly causing plaintiff to sustain serious, painful and permanent injuries to her person as hereinafter specified."
The petition set out in great detail the injuries claimed to have been sustained, including an aggravation of a pre-existing arthritis.
By its answer, defendant admitted the allegation of the petition that it was a corporation engaged in business in the City of St. Louis as a common carrier of passengers for hire, and that it maintained an office in said city for the transaction of its usual business. All other allegations of the petition were denied.
The defendant on this appeal has briefed three points as grounds for reversal. They are: (1) that the court erred in permitting improper argument by plaintiff's counsel; (2) that the court erred in refusing to admit certain evidence offered by defendant which tended to disprove certain testimony offered by plaintiff in rebuttal; and (3) that a new trial should be granted for the reason that the verdict of the jury was so grossly excessive as to indicate passion, bias and prejudice on the part of the jury against defendant.
Plaintiff's evidence shows that on June 5, 1947, at about 12:20 p. m., she was a passenger on one of the defendant's streetcars traveling south on Eighth Street. The streetcar in question made a stop at Market Street, at which place plaintiff attempted to alight from the streetcar, through the exit door in the center of the car, in order to transfer to a Lindenwood bus. Plaintiff testified: "I started to step down and just as I started stepping my foot out of the car, it just started and pitched me out on my face. * * * I was on the bottom step stepping out * * * one foot was out in the air. I started to step from the car. * * * The car started and threw me on my face."
The defendant offered testimony which tended to show that the accident could not have happened in the way plaintiff testified it did. Mr. Anthony Hollerbeck, defendant's Superintendent of Railway Equipment, testified the streetcar in question was so equipped that it could not be moved when the center door was open, hence plaintiff could not have been thrown by a movement of the car while she was alighting therefrom. From his testimony, it appears that by opening the door the power is shut off from the motors, and without power the streetcar cannot be moved, nor could the brakes be released.
The witness testified: "Q. Now, lets assume that a woman was standing on the lower treadle of the treadle-type of streetcar, particularly No. 923, a streetcar of that type, in the process of lifting one foot out so that she could step down on the ground. Will you tell whether or not in your opinion it would be possible for a streetcar of the 900 type to move under those conditions. A. Absolutely impossible because the brakes couldn't be released and he could not get any power."
On rebuttal, plaintiff placed on the stand a former employee of defendant, Mr. Louis J. Protheroe, who stated that he was familiar with the operation of streetcars of the type involved in the accident, having operated that type on a regular run. He then gave the following testimony:
"Q. I would like to ask you if it is possible for one of those 900 type streetcars when it comes to a stop and a person is standing on the treadle on the bottom step, the door is open, is it possible for that car to move, start? A. I have had it happen to me.
"Q. How is that possible? A. Well, there are two ways, the mechanism above the door can be fooled with by the operator of the car, or otherwise, they can go on the fritz, on the bum.
"Q. By going on the fritz, you mean the mechanism is broken, or not working correctly? A. Not working correctly, yes, sir.
"Q. If either of those happen, then it would be possible for the car to start? A. Yes, I have had it happen to me."
On cross-examination, Mr. Protheroe testified that the door could be opened while the streetcar was in motion by the operator placing a match in some part of the mechanism over the front door. He further testified:
"I have seen different operators go back and pick this panel down and reach up and touch something and those doors would stay open, and the car would operate.
"Q. * * * it is necessary for them to go back to the door and plug something above the door in order to start the car with the door open? A. It is against the company rules, but it has been done.
"Q. But that is what you were talking about, that process would have to be gone through before the car would start with the door open, is that right? A. Not necessarily. The mechanism could go wrong, and it would still do it."
On cross-examination, Mr. Hollerbeck testified that the defendant maintained a regular system of car inspection and that a streetcar of the type involved in the accident was regularly inspected every fourth day by trained mechanics, the purpose being to replace worn parts and detect failures in mechanism.
The argument of the plaintiff's counsel concerning which complaint is made, under point one of appellant's brief, appears in the transcript as follows:
"Mr. Fredrickson: As near as I can get at it, their defense seems to be it couldn't happen. If it did happen, it wasn't any fault of the Public Service Company. It couldn't happen that way, because these doors are so equipped that they couldn't move, and if everything was working properly, I will grant you that that is true, but like any bit of mechanism that we know of, we know that it can go on the fritz, and it won't work as it is supposed to. It is regrettable that Mr. Stephen's brought in everything, except the repair sheet that we could see what repairs had been made on this car before and afterwards. He has those. He didn't choose to bring them in.
"Mr. Stephens: May it please the court, I object to that sort of statement in that those sheets would be available to Mr. Fredrickson also, and he could bring them in if he had chosen to put them in evidence.
"The Court: Overruled. Proceed."
Appellant contends that the court erred in overruling the objection to the foregoing argument, and in support of its contention now urges that the argument was improper because (1) it was based on facts not in evidence, and (2) such records, if any, were equally as available to the plaintiff as they were to the defendant.
In its motion for new trial defendant made no complaint whatever with reference to the court's ruling. We are, therefore, precluded from considering appellant's complaint here. Section 140(a) of the General Code for Civil Procedure, Laws 1943, sec. 140(a), page 395, Mo.R.S.A. § 847.140(a), provides as follows: "Apart from questions of jurisdiction of the trial court over the subject matter and questions as to the sufficiency of pleadings to state a claim upon which relief can be granted or a legal defense to a claim, no allegations of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court."
Our Supreme Court has, pursuant to the authority given it by Section 10 of the Code, promulgated Rule 3.23, as follows: "Allegations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for new trial; except questions of jurisdiction over the subject matter, questions as to sufficiency of the pleadings to state a claim or defense, questions of the sufficiency of the evidence to support the judgment in cases tried as provided by Section 114, questions authorized by Section 113 to be presented in a motion for judgment, questions authorized by Section 114(c) to be presented in a motion to amend the judgment and opinion, or questions under Section 99(b) authorized to be presented in a motion to set aside a dismissal."
The matter urged here does not fall within any of the exceptions specified in the rule, hence is not for review in this court. Nor do we think that Rule 3.27 of the Supreme Court Rules requires us to consider said allegation of error, as suggested by appellant in its reply brief. We do not believe that said allegation of error presents a plain error affecting substantial rights requiring us, in the exercise of our discretion, to consider the point made in order to prevent manifest injustice or a miscarriage of justice.
In our opinion, we are not, under the law, authorized to review the trial court's ruling on the objection made, or pass upon the further objection to the argument which was urged for the first time in this court. Section 140(a) General Code for Civil Procedure, Laws 1943, sec. 140(a), p. 395, Mo.R.S.A. § 847.140(a); Rule 3.23, Supreme Court Rules; Burrow v. Red Line Service, Inc., 343 Mo. 605, 122 S.W.2d 919.
The court's ruling with respect to the exclusion of evidence, concerning which appellant complains, appears in the transcript as follows:
"Mr. Fredrickson: That concludes the rebuttal.
"Plaintiff rests in rebuttal.
"(Conference between court and counsel)
"The Court: Let the record show that counsel for defendant requests the court to give him an opportunity to bring back Mr. Hollerbeck, the man who testified before, for the purpose of rebutting the testimony of the witness offered by the plaintiff in rebuttal.
"Mr. Stephens: Particularly to the effect that the mechanism in the door, because of its design, necessitates the door being shut to close the circuit, so the power can be delivered to the motor and the car can be started.
"The Court: As the court recalls, that testimony was already developed in the defendant's case when the witness was on the stand, so it wouldn't be surrebuttal testimony; therefore, the court overrules the motion. Is that all, gentlemen?
"Mr. Stephens: Yes, your Honor."
It is apparent from the foregoing offer of proof that defendant's counsel intended to put Mr. Hollerbeck back on the witness stand to again testify to facts which had been previously fully developed. Defendant was not entitled, as of right, to put in, in surrebuttal, evidence merely cumulative or confirmatory of that already adduced by him in his original case. Whether he may do so rests within the sound discretion of the trial court. Seibel-Suessdorf Copper Iron Manufacturing Co. v. Manufacturers' Railway Co., 230 Mo. 59, 130 S.W. 288. We see no abuse of discretion in the action of the trial court in refusing the foregoing offer of proof.
Appellant contends that the verdict of the jury is so grossly excessive as to indicate passion, prejudice and bias, necessitating a new trial. This necessitates a review of the medical testimony and other evidence bearing on the nature and extent of plaintiff's injuries.
At the time of the accident plaintiff was thrown to the street from the steps of the streetcar and knocked unconscious for a very brief period. When she came to she was dazed and remained so for the rest of that day. She was assisted to a store, called "905", which was located on the northeast corner of Eighth and Market Streets, and sat down in a booth. At that time blood was running from her nose and from a cut over her left eye. She also suffered abrasions on both knees. After being taken into the store, plaintiff fainted and was revived by the application of a wet towel to her face. She was then taken home in a taxicab and put to bed. Dr. Ralph Riley was called and came that same day and administered treatment.
Dr. Riley testified that plaintiff suffered a fractured nose, lacerated right eyebrow, contusions and lacerations of both knees and a sprained back. He straightened plaintiff's nose the best he could and packed it, and gave her anti-tetanus. He did not take any stitches in the wounds over the eye or on the knee because they were dirty, but he cleaned the wounds around the edges and dusted them with a little sulfa powder. Thereafter, Dr. Riley continued to treat plaintiff for some time. He could not remember how long plaintiff remained under his care, but stated that he treated her in her home for about a month, making probably twenty trips, and thereafter treated plaintiff at his office. He stated that it took about a month for the cut on plaintiff's knee to heal, and that the cut over her eye healed nicely. He stated that plaintiff was very nervous. He also testified that he did not know how many trips plaintiff made to his office, or the date he last saw her professionally, but that during the time he treated her she came to the office every three or four days.
Plaintiff testified that after the accident she remained in bed for one week, during which time she "hurt all over." She stated that at the end of the week she was able to get out of bed and "hobble" around the house with the aid of a crutch or cane; that she could not get around without a crutch or cane because her knees hurt and were stiff, and that for a whole year she could not bend or stoop and pick anything off the floor. She also testified that for three months she could not go up and down stairs without help, and that it was about three and one-half months before she could go out by herself; that when she started going out she was nervous, and everytime she would step up, her "knees would catch," and that if she was not careful she would be thrown down. Plaintiff further testified that she still could not do housework, such as sweeping and scrubbing, on account of her back and knees hurting her.
At the time of the accident plaintiff was living with her husband and brother. Plaintiff stated that for about three months her brother and her friend, Miss Snyder, helped her with the housework; that after the three months' period she still could do nothing in the house; that she could not wash or iron, because it would hurt her back to stand.
Plaintiff further testified that she continued under the treatment of Dr. Riley for about a year and then went to Dr. Frank L. Morse. She stated Dr. Morse was still treating her, and that he gave electric heat treatments to her knee and back. She said she went to Dr. Morse as much as three times a week.
Plaintiff testified that since the accident, when she contracts a cold, her nose stops up and she is unable to breathe through the left nostril. She also stated that she gets a headache when her nose stops up, which condition she didn't experience prior to the accident.
Plaintiff testified that she still suffered pain in the knees; that she has pain in the small of her back if she tries to scrub the floor with a dry mop, or tries to sweep the floor, and that this condition had not improved any during the last year.
On cross-examination, plaintiff testified that Dr. Riley treated her in her home every day for the first two or three weeks, and that she was treated by Dr. Riley once a week in his office for about a year. She stated she quit Dr. Riley because he was not doing her any good. She also stated she had an electric pad at home, and that Dr. Riley gave her medicine for her nerves. She admitted she was going through menopause during that time and was being treated by the doctor for this, but denied that this caused her to be nervous. She stated she had never been nervous prior to the accident.
Plaintiff further stated that after June, 1948, she went to Dr. Morse three times a week for at least two months, and after that on an average of twice a week. Dr. Morse gave her medicine and electric heat treatments at his office. She stated she was still being treated by Dr. Morse.
Dr. Frank L. Morse testified that he first saw Mrs. Naylor on June 22, 1948, and found she was suffering from arthritis in both knees. He gave her penicillin and diathermy treatment. On cross-examination, Dr. Morse testified that when he saw Mrs. Naylor in June, 1948, her knee was swollen and she had a floating patella which was an abnormal condition. The doctor gave her diathermy treatment for this floating patella but was unable to state over what period of time he gave her this treatment. He stated that arthritis in the knee was all that he found the matter with her, and treatment for that was all he did for her. Later, in his testimony, Dr. Morse stated he also gave diathermy treatment to plaintiff's back. He stated he never treated her nose or the cut above her eye.
Dr. Wilbur K. Mueller testified from X-rays taken at his office on March 14, 1949. He stated that plaintiff's Exhibit A was an X-ray film showing a side view of the nose, and showed a fracture of the nasal bone near the junction of the middle and distal thirds, with the fragments in good position. It showed that bony union had not been completed at the time. The witness further testified that the X-ray film of plaintiff's knee showed evidence of arthritis, and that the film showing a side view of the knee revealed a very slight irregularity of the articular surface of the patella, and also revealed evidence of arthritis.
Dr. Mueller further testified that the film showing a view of the spine revealed a slight irregularity of the articular surfaces of the sacroiliac joints due to arthritis, and a break in the continuity of the transverse process of the first lumbar vertebra, which he interpreted as the result of a very old injury, possibly sustained during childhood; that he saw no evidence of a recent fracture or dislocation. He stated that the condition of arthritis was permanent.
Dr. Robert Mueller made an examination on June 2, 1949, for the purpose of testifying for plaintiff. He found a slight deviation of plaintiff's nose to the left, at the bridge of the nose, and a slight hump near the junction of the bony cartilaginous portion. He also found a slight scar on the nose at this point which was somewhat darkened, apparently containing some foreign material such as dirt or cinders. He stated that the scar was well healed, as was the nose itself; that plaintiff had difficulty in breathing through the left side of her nose; that he found some crepitation in both knees, especially in the right knee, with slight limitation of flexion due to soreness, but no limitation of extension. The witness further testified that the contour of the spine was normal, with no spasticity of muscles, but slight limitation of motion. His examination of the eyebrow disclosed no objective findings. The doctor further stated that he had examined the X-rays taken by Dr. Wilbur K. Mueller and that they revealed a fracture of the nasal bone near the junction of the distal and middle thirds; arthritis of both knees, which was more extensive in the right knee; and arthritis in the lower back, particularly in the sacroiliac region. He stated that the fracture of the nose had not healed; that there was rather free play a little above the junction of the cartilaginous portion with the bony portion, with the result that the nose is sensitive and tender; that the septum was crooked, which tends to obstruct and interfere with the drainage of the sinuses. He stated that with the fracture existing for two and one-half years, it would remain an un-united fracture, and that the deviation would have to be taken care of by an operation, which, in a great majority of cases, brings good results in clearing up the nose. He would not venture an opinion as to the results of an operation in Mrs. Naylor's case. The witness further testified: "Arthritis is a condition that many people have past forty-five or fifty years of age; that they develop it in their knees, and they develop it in their backs and other parts of their body. Just the way these things develop, we don't know, especially so-called hypertrophic arthritis, such as she has. That is the situation with arthritis * * * on the joints of the body there develop little protrusions of bone usually covered with cartilage and these little protrusions are known as hypertrophic spurs and you will find them in the knees and quite often in the back, I say particularly people past middle age * * * arthritis may be aggravated by injury."
In answer to a hypothetical question which assumed the facts with reference to the accident, the objective symptom of injury, her complaints of pain, and the arthritic condition, Dr. Robert Mueller stated that in his opinion her present condition was due to the accident. He further testified:
"Q. And assuming those facts, doctor, assuming that she has had pain up to this date, will there be pain in the future because of the accident? A. I think it will vary in degree, that is my experience, that people with this condition may go along for quite a time without much trouble and then something will come along which will aggravate the condition and cause considerable degree of disability, then they may again have another considerable period without much trouble.
"Q. Would the disability or discomfort that she may experience in the future, would that, assuming those facts that I gave you, would that result from the accident? A. If the condition had been aggravated by the accident and she had no trouble before, according to the hypothetical question, then I must assume that what she has in the future would be secondary to that."
Appellant contends that the verdict of the jury, $12,500, was so grossly excessive as to indicate passion, bias and prejudice on the part of the jury against defendant, and that a new trial should be granted for that reason. A trial judge may, in view of his better opportunity to measure the general effect of the trial proceedings on the jury, infer prejudice and bias from the size of the verdict alone, but that right is denied to the appellant court. Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126; State ex rel. St. Joseph Belt Ry. Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351; Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157.
It is further urged that the verdict as reduced by the trial court is still excessive.
It may be conceded that the verdict, even as reduced by the trial court, is very substantial for the character of the injuries sustained. However, after a review and consideration of the evidence in this case touching on the plaintiff's injuries, we have reached the conclusion that we would not be justified in ordering a further remittitur.
The judgment appealed from is affirmed.
McCULLEN and BENNICK, JJ., concur.