McClanahan v. St. Louis & San Francisco Railroad Company
| Decision Date | 08 March 1910 |
| Citation | 126 S.W. 535,147 Mo.App. 386 |
| Parties | J. W. McCLANAHAN, Admr. of the Estate of FLORENCE WHITWORTH, Deceased, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted February 8, 1910.
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
REVERSED AND REMANDED.
STATEMENT.--This is an action for damages for injuries sustained by plaintiff's intestate in alighting from a train of the defendant at a place called Terry, in Pemiscot county. It was commenced on the 18th of January, 1908, by Mrs. Whitworth plaintiff's intestate, who has died since the case has been appealed to this court. For convenience and brevity, we will refer to her as plaintiff in the case, or even as respondent. In her original petition the plaintiff stated after the formal averments of the incorporation of the defendant and that it maintained a platform at this station of Terry for the accommodation of its passengers, that on the 28th of December, 1907, the conductor in charge of the train took hold of plaintiff's hand to assist her in alighting from the step of defendant's passenger coach to the floor of the platform, and that in assisting plaintiff to alight from the train, the conductor suddenly pulled or jerked her and caused her to turn around and step backwards upon the platform, and that in stepping backwards plaintiff's right foot and leg went through a hole in the platform which defendant had carelessly and negligently permitted and suffered to remain, thereby causing plaintiff to fall and be violently thrown upon her right side upon the platform "that by reason of plaintiff's foot and right leg going through said hole in the platform, . . . and the fall of plaintiff in the manner aforesaid, and occasioned thereby she sustained and received the following injuries without fault of her own, to-wit: A bad bruise and slight abrasion of the outer upper third of the right thigh; a slight abrasion and bruise of the inner third of the upper right thigh; a dislocation of the right hip; a rupture of the synovial membrance of the joint of the right hip; a bruise and strain of the peritoneum; a severe injure to the kidneys and lower bowels; and a sever wrench and strain of the spine and other internal and external injuries, all of which injuries are permanent in nature and character." Damages in the sum of fifteen thousand dollars are demanded. Afterwards, on September 4, 1908, plaintiff filed an amended petition, in which the injuries sustained and received are set forth as follows: "Bruise and abrasion of the outer upper third of the right thigh; bruise and abrasion of the inner third of the upper right thigh; rupture of the synovial membrane of the joint of the right hip; dislocation of the right hip fracture and breaking of the femur bone in the right leg; bruise and strain of the peritoneum; wrench and strain of the lower spine, and other internal and external injuries, all of which are permanent in nature and character."
The answer of defendant was a general denial and plea of contributory negligence, to which plaintiff filed a reply.
The cause coming on for trial before a court and jury, evidence was introduced on the part of plaintiff tending to show that there was a hole in the railroad platform through which plaintiff had fallen; it was about ten inches wide and seven or eight feet long, reaching about two-thirds across the platform. Plaintiff testified that on the day of the accident, when the train whistled for the stop at Terry, she got up, walked out between the coaches, and one of the train men helped her off. He stepped off ahead of her, set the footstool down, stepped back, reached up with his right hand, took hold of plaintiff and gave her a jerk and "turned her loose." She staggered backwards into the hole in the platform and her right leg went through the hole as far as it could; it was hurting her and she turned sick. She got up without assistance and went from there over to her house. That was about 11 or 12 o'clock in the forenoon; didn't remain at home during the afternoon but went over to her aunt's, a Mrs. Douglas, in the evening. Plaintiff further testified that the night after the injury, after she went to bed, she never rested to any amount all night, her hip hurt her. Her husband and a young man living with them, named Age, had to turn her over in bed and help her out of bed. The next morning she tried to get up and couldn't stand on her feet by herself; had to rest her weight on her left leg. Her husband helped her to dress and Age helped her in the kitchen. She made biscuits for breakfast and they helped her to the table and she ate breakfast. Afterward she washed the dishes, stood leaning against the stove with the weight on her other leg; started back to the bedroom but fell before she got there; sent for a doctor that night but did not get one because the roads were bad; did not get a doctor until Tuesday or Wednesday. The accident had happened the Saturday previous. Dr. Mayes, Dr. Crow and Dr. Phipps treated her at the time of her injury and confinement to bed. She suffered badly during that period and was confined to her bed. It was a couple of months before she could walk by herself, to amount to anything. The limb is short now and hurts and always has hurt her; never had had any trouble with that hip or leg before. Her health prior to the accident was good; had had some sickness but not bad; had never had any trouble with her hip or leg before and no other fall or accident between the time she stepped into this hole and the time she was not able to move or walk on the limb, and had met with no accident since. The leg was bruised and skinned and since the injury and at the time of the trial she has suffered from a wrench or sprain of the lower spine.
On cross-examination plaintiff said that she and her husband scuffled very often; about three weeks before he and plaintiff and Arthur Age scuffled and they all fell down; had not scuffled any after she fell in the hole at the railroad platform, and had not hurt herself at all in any way after she fell in the hole; had never told anybody that falling in the hole did not hurt her hip; had received no injury whatever afterwards. This was Saturday that she went home on the noon train, and thought that they sent for a doctor Sunday evening but didn't get one; didn't get one until Wednesday, when Dr. Mayes came and examined her hip and left some medicine to quiet her. He did not set her hip that day; didn't know how long it was until another doctor came; was sick and didn't keep up with the days of the week; doesn't know what was done after that; was in bed twenty-one days before she ever sat up. Doesn't remember how often the doctor came but he was there several times; Dr. Mayes, Dr. Crow and Dr. Phipps were there together once, and Dr. Phipps had made a trip to see her since she had been up. Dr. Crow was there twice when Dr. Mayes and Dr. Phipps were with him all three of them being there together, and he made some trips alone to see her. He had treated her for the injury. Guesses anyone could see the injury by examining her without her telling them what it was; was bruised and skinned where the injury was; didn't go anywhere else that evening but from the train home and up to her aunt's, Mrs. Douglas', and back; did not walk around the house much.
On redirect examination plaintiff testified that before the accident she kept a boarding house and had twelve or twenty boarders and did her work herself; since the accident hasn't been able to do anything much; between the time she fell through the hole and the next morning she suffered some from this injury; doesn't know whether she limped during the afternoon; was sick and hurting and never noticed; had never suffered from the right hip before the accident; had had heart trouble before the accident; after the accident had suffered bad and since then has had these spells all the time, off and on, about as frequently as before.
On re-cross and redirect examination she gave no testimony materially bearing on the accident, principally about her several marriages and the birth of her child, which it appears died when it was four weeks old.
Plaintiff called Dr. Byers and Dr. Faris as witnesses on her behalf, who testified that under order of the court they had examined plaintiff, found a shortening of the right leg, in the neighborhood of two and a half inches, and attributed it to a fracture of the femur; had made a second examination, also under order of the court, and did not find plaintiff suffering from any other injury at this second examination. The right leg was some two and a half inches shorter than the left; attributed this shortening to a fracture of the thigh, of the femur, the upper third of the femur was broken. These surgeons were recalled by defendant and gave testimony practically to the same effect as that given by Dr. Hendricks.
Dr Hendricks, called as a witness by plaintiff, was one of the three physicians who had made an examination of the plaintiff under order of the court. He testified that he had found a shortening of the right femur, about two and a half inches or more, due to a fracture of the upper third of the femur. The first examination that the physicians made was made two or three months before the trial and the last was made a day or so before the trial. From the examination Dr. Hendricks testified that he should judge the fracture to have been in the upper third, "overriding over fragments." With the exception of this trouble she seemed to be all right; considered the injury to her limb permanent. On cross-examination Dr. Hendricks said: "The femur articulates in the hip joint and at the knee, and it was...
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