Edwards v. St. Louis & S. F. R. Co.

CourtCourt of Appeal of Missouri (US)
Citation166 Mo. App. 428,149 S.W. 321
Decision Date02 July 1912
PartiesEDWARDS v. ST. LOUIS & S. P. R. CO.

Appeal from Circuit Court, Dunklin CounTY; W. S. C. Walker, Judge.

Action by Mollie Edwards against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The following authorities were cited for appellant: Smart v. Kansas City, 91 Mo. App. 586; Evans v. Town of Trenton, 112 Mo. 403, 20 S. W. 614; McClanahan, Adm'r, v. RafIroad, 147 Mo. App. 410, 126 S. W. 535; Reyburn v. Railway, 187 Mo. 575, 86 S. W. 174; Webb v. Railway, 89 Mo. App. 604; Highfill v. Railway, 93 Mo. App. 223; Holloway v. Kansas City, 184 Mo. 44, 82 S. W. 89; Mellor v. Railroad, 105 Mo. 455, 16 S. W. 849, Groll v. Tower, 85 Mo. 249, 55 Am. Rep. 358; 11 Amer. & Eng. Enc. of Law (2d Ed.) p. 503, par. 2; 22 Amer. & Eng. Enc. of Law (2d Ed.) p. 1261, par. "C."

The following authorities were cited for appellee: Arnold v. City of Maryville, 110 Mo. App. 254, 85 S. W. 107; Lane v. Railroad, 21 Wash. 119, 57 Pac. 367, 46 L. R. A. 153, 75 Am. St. Rep. 821; Nat. Bank v. Lawrence, 77 Minn. 282, 79 N. W. 1016, 80 N. W. 363; McConnell v. City of Osage, 80 Iowa, 293, 45 N. W. 550, 8 L. R. A. 778; Norton v. City, 18 Mo. App. 457; Weitz v. Railroad Co., 53 Mo. App. 39; Lackland v. Mining Co., 110 Mo. App. 634, 85 S. W. 397; Glassgow v. Railroad, 191 Mo. 358, 89 S. W. 915; Haworth v. Railway Co., 94 Mo. App. 225, 68 S. W. 111; Landers v. Railroad, 134 Mo. App. 87, 114 S. W. 543; Smart v. Kansas City, 208 Mo. 183, 105 S. W. 709, 14 L. R. A. (N. S.) 565, 123 Am. St. Rep. 415, 13 Ann. Cas. 932; Streeter v. City of Breckenridge, 23 Mo. App. 244; Corbett v. Railway Co., 26 Mo. App. 621.

W. F. Evans, Moses Whybark, and A. P. Stewart, for appellant. Ward & Collins and B. L. Guffy, for respondent.

REYNOLDS, P. J.

This is an action for personal injuries alleged to have been sustained by plaintiff, a passenger on one of defendant's trains, while alighting therefrom at Hayti, a station on the railroad. The acts of negligence alleged in the petition are that while plaintiff was in the act of alighting from the train at the station, the defendant company carelessly and negligently failed to stop and hold stationary the train at the station a reasonable length of time to permit plaintiff to alight, but carelessly and negligently caused the train to give a sudden start while plaintiff was attempting to alight from it; that the station at which she was alighting was without lights; that It was dark.

It is further alleged that in attempting to alight plaintiff was thrown from the train and on to the platform, thereby greatly mangling, bruising and injuring her in her right leg and knee, breaking and tearing the ligaments of the knee and leg and breaking and fracturing the bones of the knee and greatly bruising her on her right arm and side. Making the usual allegations of pain and suffering and expenditure for physicians and alleging that the injury is permanent, plaintiff prayed damages in the sum of $10,000. The answer, after a general denial, contains a plea of contributory negligence.

There was evidence at the trial tending to establish the facts connected with the happening of the accident. Plaintiff testifying on direct examination, stated that when she fell her knee went between the car and the platform and that threw all her weight on her right side; she thought when she was assisted to her feet that she could walk home but she had to be picked up and helped over to a store where by-standers procured a buggy and, took her home. She testified that the effect on her right knee was such as to cripple her for life. For more than three months after the accident she had never walked a step; was in bed about three months, suffered pain with her knee, which was swollen as large as a gallon bucket and very black, walked on crutches for a month and from that time on had not been able to bend her knee; her knee was not in. that condition before she received the injury; it is so stiff now that she cannot move it at all. The knee cap was fractured and except this injury to the knee, although she was skinned and bruised, she sustained no other hurt. Has three children that she supports. She further testified that a Dr. Troutman was the physician who had attended her; does not know exactly how many trips he made, sometimes he came twice a week; made the visits immediately after the injury and dressed the knee and bound it up. When in this condition she was required to lie on her back; her knee was in such shape that she could not turn over; that the injury was caused by the jerking of defendant's train and her fall; that her knee swelled up and got stiff; that she could not bend it anymore and that it is still in that condition. Is thirty-five years old and her avocation is that of washing and ironing.

On cross-examination plaintiff testified that she had had rheumatism some three years before the trial but not to such an extent as to cripple her any, although it had swollen her knee joint. She further testified under cross-examination that she sent for Dr. Troutman immediately; supposed he had made an examination of her knee; said she was injured.

All the testimony in the case as to the nature and extent of the injury was by plaintiff herself, except that other witnesses testified to seeing the accident, to picking her up and assisting her to the store, one of them testifying that she could not take a step; that he had to carry her to the store. Witnesses also testified that they had seen her before the accident and had never noticed that she was crippled; that they knew she had been laid up in bed on account of the injury for five weeks or so, and that she walks with a limp, but no physician testified as to treatment or as to the extent of the injury.

At the conclusion of plaintiff's testimony counsel for defendant, calling the attention of the court to the fact that the evidence disclosed that Dr. Troutman was the physician who had treated plaintiff for her injury and that Dr. Troutman was now present in the court room and was present when plaintiff closed her case and had been in attendance in the court throughout the trial, asked the court to have plaintiff produce Dr. Troutman in court and place him on the stand as a witness for her in this case, "so that the bar of the statute will be waived, and the defendant have full opportunity to examine him concerning the injuries "he treated plaintiff for, and his knowledge of her condition when he treated her, and the effect of the injury, if any she received, had in disabling her." Counsel further remarked : "Plaintiff declines to, produce him (Dr. Troutman) and closes her case. Defendant now requests the court to require the plaintiff to introduce the said physician relative to the injury for which he treated her." The court denied the application, defendant excepting.

Defendant thereupon introduced evidence tending to prove that plaintiff had limped more before she claimed to have met with the accident than she had since; that she walked about the same. Defendant then called Dr. Troutman, the physician before referred to, who testified he was a practicing physician; that he had been called on to treat plaintiff for an injury to her knee. He was asked what examination he made of her, and if he had discovered in examination, if he made one, any physical disability...

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