Anshutz v. Louisville Ry. Co.

• Decision Date: 12 March 1913
• Citation: 152 Ky. 741
• Parties: Anshutz v. Louisville Railway Company. Louisville Railway Company v. Anshutz.
• Court: Kentucky Court of Appeals

152 Ky. 741

Anshutz v. Louisville Railway Company.

Louisville Railway Company v. Anshutz.

Court of Appeals of Kentucky.

Decided March 12, 1913.

Appeals from Jefferson Circuit Court (Common Pleas Branch, Third Division).

BENNETT H. YOUNG for appellant.

FAIRLEIGH, STRAUS & FAIRLEIGH and HOWARD B. LEE for appellee.

OPINION OF THE COURT BY JUDGE TURNER — Affirming the first named appeal and dismissing appeal in the second named case.

In April, 1910, Lillian Anshutz, a young married woman twenty-three years of age, was injured while a passenger on one of the cars of the Louisville Railway Company. She was immediately taken to her home, and her family physician called, and he continued to attend her for some months.

She filed her action against the Louisville Railway Company for damages and set up in detail the nature and extent thereof. It appears that at the time of the accident she was enceinte, and that thereafter, on the sixth day of September, 1910, there was born to her a boy baby.

In April, 1911, she was taken to a hospital in Louisville, and after having been there a few days a serious operation was performed upon her, at which time it is shown by the several physicians and surgeons who were present that there was removed from her body both fallopian tubes, the whole of the left ovary and part of the right ovary.

The case came on for trial on the 21st of December, 1911. Previous to the trial, however, the court, upon motion of the railway company, appointed a surgeon to examine Mrs. Anshutz as to the nature and extent of her injuries and her then physical condition. On the trial all the physicians and surgeons who were present at the operation in April, 1911, testified as above indicated with reference to the nature of the operation, and in addition, that by reason thereof Mrs. Anshutz was made barren and could never have another child; they further stated that at the time of the trial there had developed a tumor in the abdomen of Mrs. Anshutz which would sooner or later necessitate still another, and possibly more serious, operation, which would probably endanger her life.

The surgeon appointed by the court, basing his testimony upon the history of the case as given to him by the other physicians and surgeons, testified in substance to the same thing.

The jury rendered a verdict for seven thousand ($7,000.00) dollars for the plaintiff, and the railway Company, having entered its motion and grounds for a new trial, and the same being overruled, appeals to this court.

On the third day of June, 1912, Mrs. Anshutz gave birth to another boy baby, and twenty-five days thereafter the Railway Company filed its action, setting up this fact, and asked for a new trial of the former case. To the petition in that case Mrs. Anshutz demurred, and her demurrer having been overruled, she answered, and the Railway Company having demurred to her answer, the court sustained the same, and after evidence was taken, granted a new trial, and from that judgment she appeals.

The two appeals were by order of this court heard together in an oral argument, and will now be considered together.

The petition for a new trial sets forth in detail the proceedings had and the evidence heard in the trial of the original case in the circuit court; but the chief reliance of the Railway Company for a new trial is the fact that the uncontradicted testimony of the physicians and surgeons on the trial was to the effect that Lillian Anshutz, as a result of the operation which became necessary by reason of the accident, was barren, and could never again bear children, and that the subsequent birth of her child in June, 1912, had shown conclusively that this evidence was untrue.

On the trial of the original case in the circuit court the evidence showed several different ways in which Mrs. Anshutz was injured by the accident, but it is urged for the Railway Company that by reason of the serious nature of the one injury referred to, and its far-reaching results, that it must have had, from the very nature of things, a controlling influence upon the jury in fixing the amount of the recovery.

The evidence on that trial disclosed with reasonable certainty that the accident was brought about by the negligence of the Railway Company, and in truth the trial resolved itself into merely a question of fixing the amount of the damages; and that being true, the uncontradicted evidence of the physicians and surgeons as to the condition in which the accident had left this young woman must have necessarily had a strong and controlling influence in fixing the amount of the verdict.

From the very nature of...