Sampson v. Atchison, Topeka & Santa Fe Railroad

1. Instructions: damages : assuming facts : verdict. An instruction on the measure of damages, faulty in itself, is held, when taken in connection with the whole charge, not to invalidate the verdict, since the verdict is regarded as conservative in amount. 2. Appellate Practice: remarks of counsel: exceptions. To have the remarks of counsel in the closing argument reviewed in the appellate court, exceptions thereto must be saved. 3. Evidence: non-expert. Anon-expert may testify as to the com parative appearance of the eyes of an injured man before and after the injury.

Appeal from the Macon Circuit Court. — Hon. Andrew Ellison, Judge. (1) Instruction number 3 given for plaintiff was erroneous in that it assumed as true matters that were put in issue both by the pleadings and by the evidence. Maxwell v. Railroad, 85 Mo. 96; Ins. Co. v. St. Mary’s Seminary, 52 Mo. 480; Moffat v. Conklin, So Mo. 453; State v. Wheeler, 79 Mo. 366; Turner v. Loler, 34 Mo. 461; Thompson v. Botts, 8 Mo. 710; Matthaus v. Bailroacl, 26 Mo. App. 75; Thompson on Trials, sec. 2295. (2) We submit that the defendant was prejudiced by improper remarks of plaintiff’s counsel in his closing argument in which he used the following language: * * * Similar remarks by counsel outside of the record, but calculated to obtain a verdict upon other grounds than those raised by the pleadings and evidence, have been deemed sufficient in many adjudicated cases in Missouri, for the granting of a new trial. Evans v. Town of Trenton, 112 Mo. 390; Haynes v. Town of Trenton, 108 Mo. 123; loe. eit., 133; Ritter v. Bank, 87 Mo. 574; Boeder v. Studt, 12 Mo. App. 566; Wilbur v. Railroad, 48 Mo. App. 224; Norton v. Railroad, 40 Mo. App. 642, loc. eit. 647; Marble v. Walters, 19 Mo. App. 134; Gibson v. Zeibig, 24 Mo. App. 65; McDonald v. Cash & Hainds, 45 Mo. App. 80. (3) We submit that the court erred in permitting witness J. L. Sampson to give to the jury his conclusions as to how the appearance of plaintiff’s eyes before and after the injury compared. We submit that no case goes to this length. The proper and the only course is for the witness to state the facts and let the jury draw the inference and conclusion instead of the witness. Hurt v. Raikoad, 94 Mo. 254; King v. Raikoad, 98 Mo. 235. The question is not an open one in this state, the supreme court having passed upon it in Reid v. Insurance Company, 58 Mo. 421, loc. cit. 425. (1) Conceding for the sake of the argument that the remarks of plaintiff’s counsel to the jury were improper, yet the same can not be considered by this court, for the reason that no exceptions were saved to the rulings of the court thereon, as appears from appellant’s abstract. (See p. 14 from the record). Objecting to evidence or to the rulings o'f the court is one thing, and the saving of an exception to such rulings is an entirely different thing. (2) Besides, the remarks objected to by appellant were not improper in their connection. This court will not ordinarily interfere with the discretion of the trial court in such cases. Sidekum v. Railroad, 93 Mo. 400-407. (3) In appellant’s points and authorities the only instruction assailed is number 3, on the measure of damage, given for the plaintiff. This instruction does not tell the jury, nor assume, that plaintiff’s injuries were permanent no more than the “character” and “extent” of his injuries were assumed. The same foraa of expression is used in appellant’s first instruction given by the court wheré the jury is told that the burden was on the plaintiff to prove “the extent and permanence of his injury.” It is not only proper, but essential to call the jury’s attention to the items and elements to be considered in assessing the damage in a personal injury case. Sehaub v. Railroad, 106 Mo. 74-93; Sidekum v. Railroad, supra; Russell v. Town of Columbia, 74 Mo. 480-488; Rosenkrdns v. Railroad, 108 Mo. 9-15; Buck v. Railroad, 108 Mo. 179-187. ■ (4) All the instructions in the case must be taken and construed together, and when so considered they are exceedingly favorable to the defendant. Spillane v. Railroad, 111 Mo. 555-564.