Opinion
No. 27935.
January 16, 1951.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, ROBERT J. KIRKWOOD, J.
Coburn, Storckman Croft and Thomas L. Croft, St. Louis, for appellant.
John A. Davis, Everett Hullverson, and Forrest Boecker, St. Louis, for respondent.
This is an action for damages for personal injuries sustained by plaintiff, Mary Cooley, while attempting to board a bus of defendant, St. Louis Public Service Company.
Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $4,000. Judgment was rendered in accordance with the verdict; and following an unavailing motion for a new trial, defendant gave notice of appeal, and by proper successive steps has caused the case to be transferred to this court for our review.
The accident happened around eleven o'clock on the night of January 8, 1949. The scene of the accident was the northwest corner of Vandeventer Avenue and West Belle Place in the City of St. Louis, which was the regular stopping place for the southbound Vandeventer bus which plaintiff undertook to board.
There was a sharp conflict in the evidence regarding the precise manner in which the accident had occurred.
According to plaintiff's version of the facts, she had stood waiting on the corner with three or four other prospective passengers, and was the last of them to attempt to board the bus after it had pulled up and stopped some 8 or 10 inches out from the curb. The person immediately preceding plaintiff had been far enough in advance that she had gone past the operator and was no longer between him and the door by the time plaintiff tried to get aboard. As plaintiff stepped up on the first step with her left foot, and with her left hand reaching inside the bus, the operator suddenly closed the doors, catching her leg as well as her arm at about the wrist. At the same time he started the bus forward, and had moved a distance variously estimated at from 2 to 5 feet before he brought it to a stop. As the bus started up with plaintiff caught between the doors, she began to scream, whereupon the operator, realizing her predicament, at once opened the doors and applied his brakes. As plaintiff was released, she was caused to fall to the surface of the street and sustain the injuries of which she complains. While there was some uncertainty or confusion in her own testimony, her evidence in general was to the effect that the bus was still in motion when her fall occurred.
Under defendant's account of the incident, a small group of people waiting at the corner had already entered the bus, and when the operator saw that they were all safely aboard, he put his bus in motion and at the same time pushed the lever to close the doors. Glancing to the right to make sure that everything was clear, and with the bus then in motion, he observed plaintiff running towards the bus. She was then only 3 or 4 feet from the doors, which still lacked from 6 to 8 inches of being fully closed. He immediately put his foot on the brake and pushed the lever forward to open the doors. Meanwhile plaintiff got her left leg and arm between the doors which closed upon her before the mechanism could react to the changed position of the lever; and the bus moved a distance of from 2 to 3 feet before she could be released.
In her petition plaintiff founded her case upon the charge that the operator "negligently caused, permitted and suffered the door to said bus to close before plaintiff had boarded said bus, pinning and crushing plaintiff between the doors of said bus; that thereafter the said operator, acting in the said scope and course of his duties, negligently and carelessly caused, permitted and suffered the doors of said bus to suddenly open and plaintiff was thereby caused to fall from between the said doors of said bus to the hard pavement".
In its answer defendant set up, among other things, a plea charging plaintiff with contributory negligence in having attempted to board the bus at a time when she saw or could have seen that the doors were closed and that the bus was starting up away from the curb.
After plaintiff had concluded the presentation of her evidence with respect to the manner in which the accident had allegedly occurred, she offered to read a portion of an ordinance of the City of St. Louis having to do with the duty of the operator of a motor bus, Chap. 14, sec. 25d, Revised Code of the City of St. Louis, 1948.
The court overruled defendant's objection that there was no foundation in the pleadings for the introduction of the ordinance, whereupon plaintiff read the ordinance, which provides that it shall be unlawful for the operator of any motor bus "to operate said vehicle while any person riding thereon is not entirely within the body thereof".
The trial proceeded, and after the motion for a directed verdict had been overruled, plaintiff submitted her case by instruction No. 1, which predicated a recovery upon the finding that while she was in the act of boarding the bus, "the operator thereof caused or permitted the door of the bus to close before the plaintiff had completely boarded the bus and that plaintiff was caught between the doors of said bus and that the operator of the bus caused or permitted the bus to start forward and did then cause or permit the bus to come to a stop and the door to be opened, thereby permitting the plaintiff to be thrown from the doorway of the bus to the pavement".
In its motion for a new trial, defendant complained of the reading of the ordinance, as well as of the inclusion in the instruction of the question of negligence on the part of the operator in causing or permitting the bus to start forward before plaintiff had completely boarded it.
While the motion for a new trial was pending undisposed of, plaintiff asked and received permission to amend her petition by interlineation so as to add the charge that "the operator of the bus negligently and carelessly caused or permitted the bus to start forward and did then negligently and carelessly cause or permit the bus to come to a stop".
Defendant now insists, as one of the chief grounds of its complaint, that the court committed error in allowing plaintiff to read the ordinance in evidence, and also in permitting her to include the element of negligence in the movement of the bus as one of the things submitted by her in instruction No. 1.
It is obvious that the two points are very closely related.
Defendant argues that inasmuch as the petition had limited the charge of negligence to the opening and closing of the doors, there was no basis for the reading of the ordinance, which deals solely with the matter of moving a bus while any person riding thereon is not entirely within the body of the bus. In the absence of such a charge of negligence in the petition, and with the same alleged to have been in no way connected with the theory of negligence which was pleaded, defendant contends that the reading of the ordinance was not only unwarranted but highly prejudicial.
By the same token defendant claims that it was error to include such new and unpleaded theory of negligence in plaintiff's instruction No. 1, when specific objection had been made to the reading of the ordinance.
Plaintiff frankly concedes that the petition had merely charged negligence in the closing and opening of the doors, and had not set up negligence in the movement of the bus. She argues, however, that long before she sought to read the ordinance to the jury, a great deal of evidence regarding the movement of the bus had come into the case without objection, and that defendant, appreciating that such question was being treated as an element of the negligence complained of, had sought to combat any unfavorable inference by bringing out on cross-examination that the bus had moved slowly and for only a few feet. She insists, therefore, that the ordinance, even though not pleaded, was admissible as evidence of common law negligence; and that with the evidence (other than the ordinance) having been brought into the case without objection, the question of negligence in the movement of the bus was no less submissible than if it had been specifically raised in the petition.
The record does bear out plaintiff's contention that the question of the movement of the bus was injected into the case from the very outset, not merely as one of the details of the occurrence, but instead as one of the things that had directly contributed to plaintiff's injury, and as one of the things of which she was complaining. Furthermore the manner of defendant's cross-examination of plaintiff and her witnesses regarding the movement of the bus would seem to indicate very clearly, just as plaintiff suggests, that the idea was not so much to support the defense of contributory negligence as it was to palliate the fact, if the jury should see fit to believe it, that the operator had started his bus in motion with plaintiff caught between the doors. Otherwise there would have been no useful purpose to be served in emphasizing the fact that the bus had moved but very slowly and for a distance of only a very few feet.
However it is none the less true that when plaintiff sought to read the ordinance, defendant did object upon the ground that the issue respecting the movement of the bus had not been raised in the petition; and the record likewise discloses that when the time came for submitting the case to the jury, defendant objected to the giving of plaintiff's instruction No. 1, which included such question as one of the predicates of liability. Consequently it cannot fairly be said that the issue was tried by the express or implied consent of the parties, which means that the question of whether defendant has a present basis for complaint would seem to resolve itself into one of whether any possible error was cured by the court's action in permitting the petition to be amended during the pendency of the motion for a new trial.
The new code provides that the pleadings may be amended at any time, even after judgment, so as to make them conform to evidence which has come in upon an issue not originally raised in the pleadings. Nor is such power of amendment limited to instances where such evidence has come in without objection, but it is further provided that even though the evidence is objected to at the trial, the court may still permit the amendment, and indeed shall do so freely when the presentation of the merits of the action will be subserved thereby, and the opposing party fails to satisfy the court that he will be prejudiced by such amendment. Laws Mo. 1943, p. 378, sec. 82, Mo.R.S.A. § 847.82; Carr, Missouri Civil Procedure, sec. 215.
In this instance the amendment did not change the cause of action, which was one for damages on account of injuries received by plaintiff while attempting to board defendant's bus on the particular occasion. All the amendment did was to give recognition to a specific feature of the evidence which was so unalterably an integral part of the whole incident that the case could not have been tried without mention of it. No one could have been confused or misled by the fact that plaintiff, in her original petition, had only charged negligence with respect to the closing and opening of the doors. It was obviously not the mere closing and opening of the doors that brought about her injury, but it was such fact, coupled with the further fact that the bus was immediately moved forward so that when the doors were opened with the bus still in motion, she was caused to be thrown headlong upon the pavement. In other words, except for the movement of the bus, the closing and opening of the doors could not have resulted in the injury of which plaintiff was complaining; and the situation was clearly one where the presentation of the merits of the action was subserved by the amendment. If it had been requested to do so, the court would have been warranted in allowing such an amendment at the very time the ordinance was objected to, but it does not affect the ultimate result that the amendment was not made until after the conclusion of the trial. Since the amendment was properly allowed, defendant is no longer in a position to complain of the reading of the ordinance and of the inclusion of the element of the movement of the bus in plaintiff's instruction No. 1.
The next point has to do with a claim of error allegedly committed during the examination of plaintiff's witness, Dr. James F. Winston, who had been called to attend plaintiff the very night of her injury, and who had then seen her at intervals over a period of weeks thereafter.
During the doctor's cross-examination it was brought out that in making his diagnosis he had taken into account certain complaints that plaintiff had made regarding pain in her knee, back, and forehead, as well as discomfort from headaches and dizziness.
At the conclusion of the cross-examination plaintiff's counsel put a few questions to the doctor in order to bring out that the first thing he and all other doctors did in undertaking to treat a patient was to ask the patient of what he complained. In fact the doctor explained that "we try to reach our conclusion by taking the patient's complaints, and then put them together with our finding".
On recross-examination defendant's counsel then asked the doctor if there are "sometimes patients that you examine that have complaints that you think maybe don't exist", to which the doctor answered, "That sometimes happens, yes."
Plaintiff's counsel then immediately took the doctor over once again and inquired whether, in his opinion, the symptoms plaintiff had described were real. Defendant's counsel made prompt objection upon the ground that to ask the doctor his opinion of plaintiff's veracity would constitute an invasion of the province of the jury. The objection was overruled, and the doctor then answered, "In this particular patient, I think they were real."
As a general rule it would be objectionable to ask a witness to express an opinion regarding the credibility of a party or any witness in the cause. Fries v. Berberich, Mo.App., 177 S.W.2d 640. In fact, in a situation such as this, where the question of the nature and extent of plaintiff's injuries was hotly disputed, it might ordinarily be highly prejudicial to inquire of a medical witness whether he regarded plaintiff's complaints as real. Henson v. Kansas City, 277 Mo. 443, 210 S.W. 13.
However the circumstances of a particular case may sometimes justify a course of inquiry that would otherwise amount to error, and it would appear that the present situation falls within that category.
The incident in question occurred during the redirect-examination of the doctor.
The accepted purpose of redirect-examination is to give a witness an opportunity to rebut or avoid the effect of testimony elicited on his cross-examination; and to that end he may properly be interrogated on his redirect-examination as to matters which tend to refute or remove any unfavorable impressions or implications that might have arisen from things brought out on his cross-examination. Johnson v. Minihan, 355 Mo. 1208, 200 S.W.2d 334; Couch v. St. Louis Public Service Co., Mo.App., 173 S.W.2d 617; State ex rel. State Highway Commission v. Bengal, Mo.App., 124 S.W.2d 687.
In this case it was strongly contended that many of the things of which plaintiff was complaining were imaginary, and it was in line with that idea that defendant inquired of the doctor whether he was not sometimes called upon to examine patients who made complaints that he thought perhaps did not exist. It had already been brought out that the doctor had given consideration to plaintiffs complaints in reaching his conclusions, and the obvious purpose of the particular inquiry was to create the impression by innuendo that plaintiff might have been feigning her complaints. In order to combat this impression the doctor was then permitted to state that in plaintiff's own case thought the complaints were real. This did not mean, however, that he was merely undertaking to express an opinion as to her veracity unaffected by his own professional connection with the case. On the contrary, when the court immediately inquired what it was that made him think the complaints were real, he answered, "Because, in our findings, our examination very closely tallied with her complaints, what she complained of." In expressing an opinion on such a basis he was not invading the province of the jury; and it was not error to permit the inquiry where defendant itself had laid the foundation during the doctor's cross-examination. Perringer v. Lynn Food Co., Mo.App., 148 S.W.2d 601.
For its final point defendant claims that the verdict is not supported by the evidence, and is excessive.
The point grows out of the fact that according to certain of the medical evidence, plaintiff's mind had been so affected by her injury as to cause her memory to be unreliable at times. Consequently defendant argues that the verdict should not be permitted to stand where its support as to both liability and damages depended in part upon the testimony of plaintiff herself.
There is no doubt that the evidence regarding the unreliability of plaintiff's memory would affect the weight of her own testimony. However it is obvious from the record itself that her memory was not wholly unreliable in view of the fact that her own account of the accident was substantially corroborated by the testimony of other witnesses. As a matter of fact, the most conclusive answer to defendant's point is that the evidence to support the verdict came not only from plaintiff's own testimony, but also from that of other witnesses both medical and otherwise. We have already shown that so far as the question of her injuries is concerned, the doctors did not base their conclusions upon her own complaints, but rather upon their own independent findings considered along with her complaints. The verdict was not without substantial support, nor was it excessive for a permanent injury to the brain and back. The question of excessiveness is of course to be determined in the light of the most favorable view of the evidence from plaintiff's standpoint.
It follows that the judgment rendered by the circuit court should be affirmed, and it is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.