Missouri Court of Appeals, 1902

Gorman v. St. Louis Transit Co.

Gorman v. St. Louis Transit Co.
Missouri Court of Appeals · Decided November 25, 1902 · Barclay, Bland, Goode
96 Mo. App. 602; 70 S.W. 731; 1902 Mo. App. LEXIS 175

Gorman v. St. Louis Transit Co.

Opinion of the Court

BLAND, P. J.

1. Defendant contends that tbe case should have been taken from tbe jury on tbe ground that there was no evidence of tbe negligence charged in tbe petition. Tbe suit was brought before a justice of tbe peace where strict rulés of pleading are not required to be observed, yet we think the complaint filed before tbe justice states a good cause of action.

*608After alleging that the crossing of Hall’s Perry-road was a regular and customary place for cars to stop for taking on and letting off passengers, and that plaintiff had notified the conductor of his wish to alight at that point, the complaint alleges that “as said car approached the regular crossing and stopping-place at the said junction, and in full view of said conductor, stepping down upon the step of said car so as to be ready to alight as soon as same came to a standstill; that as said car approached said crossing, defendant’s employees slackened its speed, but' did not stop same, and after passing said crossing, said employes carelessly and negligently suddenly increased its speed, without giving plaintiff any warning of their intention so to do, by reason of which plaintiff was thrown to the' ground and badly cut,’’ etc.

We think this statement of the facts is sufficient to constitute negligence and states the same negligence that plaintiff’s evidence tended to establish, and that it is not open to the objection that was made to the petition in the case of Chitty v. Railroad, 148 Mo. 1. c. 75, nor to the objection made to the petition in Worthington v. Lindell R’y Co., 72 Mo. App. (St. L.) 162.

2. Defendant’s counsel, in their briefs, earnestly and eloquently assail the testimony of plaintiff’s attending physician and the expert called in his support, and array the evidence of defendant’s expert -witnesses against that of plaintiff’s experts for the purpose of showing that a sixty-nine-year-old rib is wholly incapable of sustaining a “green stick” fracture. Defendant’s expert witnesses so testified. Plaintiff’s attending physician testified that two of plaintiff’s ribs did sustain a “green stick” fracture and the other expert witness for plaintiff testified that a sixty-nine-year-old rib might sustain such a fracture. Defendant’s counsel regards this question as one of scientific importance and one which ought to be settled, and set-. tied in this case, in the interest of science and justice, and appeal to us, in behalf of the noble profession of *609M. D., to settle the question for them and to settle it according to the contention of defendant’s counsel.

Now it would he very gratifying to us, and no doubt also to the professors and lecturers in the medical colleges of the country, if we could once for all fix the exact age when a rib will not break like a green stick, that is, break on one side, the opposite side bending but holding fast and refusing to' sever. Let us consider the matter. Ribs are of ancient origin. Adam had an experience with one which if he had not had we would be in Paradise to-day as free, guileless and joyous as a singing bird in Eden’s bowers, instead of sitting here laboring and sweating over this rib question. Ribs are not only ancient but common. We all carry them about us, and have them on our bill of fare every day and it seems like their qualities and propinquities would be a matter of common knowledge. But we must confess that until we read it in the bill of exceptions we never thought that there was any sympathy between ribs and green sticks, or dry ones. But the experts say, that in case of an injury to the rib, there is. It is said that “a great calamity makes all the world akin.” Perhaps this explains the action of the rib in imitating the stick when visited by calamity.

There is no controversy about the fact that ribs do imitate sticks. The experts on both sides agree to this. The dispute is about the fickleness of the rib. Defendant’s experts contend that after the age of sixteen she will no longer regard “green sticks” with a favorable eye, but turns to the dry stick and will sympathize with it only, while plaintiff’s experts maintain that she is not so perversely fickle as to withdraw all of her favors, from the green stick and bestdw all of her affection upon the dry, but even at the advanced age of sixty-nine years she has been known, as in this instance, to imitate the green stick. It has ever been thus, for we are told in ancient writings that Eve turned from Adam, the lord of all creation and the proprietor of Paradise, and listened to the blandishments of the *610Devil. But we are not going to slander our grandmother, and we hate the cowardly hypocrites who lay all the sins of the world at her door. But we all know that in the vicissitudes of fortune and the mutations of time all things change, ribs not excepted. But we do not think that these changes are, in the case of ribs, uniform as to time, but are dependent somewhat upon the strength, character and environment of the particular rib or ribs, and we must decline to lay down an ironclad rule to settle for all ages when, if at all, a rib under the process of fracture, will not imitate a green stick undergoing the same process.

In respect to the ribs in this case, their history, their age and all the facts concerning them were testified to by the witnesses in the presence and hearing of the jury. That body of men was in a better position, and they were better able to understand and weigh the evidence than we are, and it was their province to decide whether or not these particular ribs were injured. They found, not without evidence but on substantial evidence, that one of these ribs was broken and two others partially broken. There was strong countervailing evidence, but that is not material with us. Where there is substantial evidence to support the verdict it is our duty to uphold it, however strong may be the evidence the other way. To set aside verdicts because against the evidence is the province of the trial court, not ours; ours is to permit verdicts of juries to stand unless there is no substantial evidence to support them.

3. The interlineation of the word “voluntarily” in instructions numbers two and three, asked by defendant, did not in the least change their meaning and furnishes no ground for complaint. The instructions .given were full and complete, appropriate to the issues .and were hypothecated on the evidence and fully covered the entire case.

The case was tried without error and the judgment is affirmed.

Barclay and Goode, JJ., concur.

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