Arroyo v. Keller

• Decision Date: 03 June 1968
• Docket Number: No. 24839,24839
• Citation: Arroyo v. Keller, 433 S.W.2d 584 (Mo. App. 1968)
• Parties: Sarah ARROYO, Respondent, v. George S. KELLER, Jr., Appellant.
• Court: Missouri Court of Appeals

Page 584

433 S.W.2d 584

Sarah ARROYO, Respondent, v. George S. KELLER, Jr., Appellant.

No. 24839.

Kansas City Court of Appeals, Missouri.

June 3, 1968.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 7, 1968.

Application to Transfer Denied Dec. 9, 1968.

Walter F. Moudy and Russell D. Jacobson, Kansas City, for appellant.

Michael F. Mahoney, Kansas City, for respondent.

CROSS, Judge.

Plaintiff brought this action to recover damages for personal injuries sustained when defendant drove an automobile into the rear end of a car she occupied as a passenger. At the trial defendant admitted liability for the collision and plaintiff's resulting injuries. Plaintiff had a $2,500.00 verdict and judgment and defendant appeals. The sole appeal question preserved is whether the trial court committed prejudicial error by overruling objection to statements by plaintiff's counsel in argument to the jury.

Involved in the collision were three automobiles traveling in the same direction, in the same lane. Plaintiff was in the middle car and defendant's car was last in line. The front car had stopped still, waiting to turn left. The car in which plaintiff was riding also came to a stop. Some ten seconds later defendant ran his automobile into the rear of the stationary vehicle occupied by plaintiff at a speed of 35 miles per hour, knocking it into the rear end of the front car.

Plaintiff received injuries to her back and neck. At her doctor's direction she was hospitalized for approximately a week for traction to her neck and back, accomplished by 'a collar for traction on her neck, with an iron bar in the back and weight on it of about four or five pounds, and * * * transaction over her pelvis or her back at the waistline on the back of the bed.' She also received physiotherapy and was given sedatives to relieve pain. When she left the hospital she wore a neck collar which had been fitted to her, and continued to wear it for almost two months. Following her release from the hospital she was treated at her doctor's office approximately twenty-five times. At the trial (some eighteen months after the accident) plaintiff testified that 'her back still hurts a lot' that 'my neck and head aches also', and that her neck 'still hurts when I turn.' She stated that before the accident she never had pains of that type in her head or neck or back, and that since that time she was 'tired and my back always hurts, my back and my neck and head aches, and I don't get the work done that I used to do.' Plaintiff was employed as a seamstress doing piece work, at the time she was injured. She was absent from work for about three weeks, and resumed her occupation.

Dr. Nigro testified as plaintiff's consultant and treating physician, to facts here stated. When he first examined plaintiff she complained of headaches and pain about the neck and back. X-rays of her spine showed no fracture, dislocation or bone injury. On physical examination he found 'a lot of soreness about the neck, over the 6th and 7th cervical vertebrae.' She also had muscle spasm described as involuntary contraction of the muscles. She had 'some limited motion about her neck, couldn't turn it right or left or forward or backward.' There was tenderness and muscle spasm in the lumbosacral region over the 3rd, 4th and 5th lumbar vertebrae. Leg lifting revealed limitation of motion and involuntary contraction. Involuntary contraction also resulted from bending. Upon inquiry plaintiff stated 'she felt pretty healthy until she got hurt.' The doctor gave her sedatives for pain, diathermy to her neck and back and hospitalized her for traction on her neck and back; also heat treatments and medication. Upon re-examination of plaintiff about two months prior to trial, Dr. Nigro found, 'She had still some muscle spasm, stiffness about her neck, limited motion and also some tenderness and limited motion about the back in the lumbosacral region.' In the doctor's opinion those conditions are permanent in nature.

Plaintiff's counsel propounded the following hypothetical question to Dr. Nigro: 'Assume that before September the 18th, 1965, she enjoyed reasonably good health; that she at least had no trouble with her spine or her neck or her lower back and that on that date, while she was a passenger in an automobile which was stopped, it was struck from the rear by another vehicle, and pushed forward into collision with a car that was stopped ahead of it, and that in the collision the seat was jostled around in the car on which she was seated, and at least a couple of hours later she noticed pain in her neck and in her back, and she went to work after the accident and worked two complete days; on the third day she went to work she wasn't able to work the full day; that she saw you on the dates you have told us about; that you examined her; that you made the findings you have testified to here today, that you treated her in the manner which you have described and that you found her to be in the condition that she was in when you last saw her; do you have an opinion, Doctor, based upon reasonable medical certainty, whether this accident I have described to you would be the cause of the conditions which she has now?' Answering the question, Dr. Nigro stated, 'My opinion is that the accident caused her complaints.'

Dr. Paul Centner examined plaintiff on June 6, 1966, on behalf of defendant and testified as its expert witness. In a history given him by plaintiff, she described the accident, stated that she developed soreness in her neck and back within two or three hours thereafter, and detailed her hospitalization and treatment by Dr. Nigro. With reference to her past medical history she stated she had had no serious illnesses or other injuries. Her then present complaints were of pain in her back, neck and head. On physical examination he found some diminished sensation in her left extremities. In addition to his physical examination of plaintiff, Dr. Centner took several X-rays. He interpreted them as indicating plaintiff had considerable degenerative or wear and tear changes of the spine, otherwise designated as osteo-arthritis. He testified he saw no residual objective evidence of injury and expressed the opinion that the described changes pre-existed the accident and were not the result of trauma. From X-rays taken of plaintiff's spine bent forward as far as possible (plaintiff looking at the floor) and bent backward to extreme limit (plaintiff looking at the ceiling), Dr. Centner found that the amount of curvature possible, both forward and backward, was less than normal. Plaintiff's spine appeared to be 'somewhat restricted as to range of motion', and there appeared to be 'a certain amount of rigidity or lack of motion in the spine.' He concluded that 'she might have had some muscular ligamentous strain in the neck and low back area, which were superimposed, let us say, on top of these pre-existing degenerative changes;' also that 'her residual complaints were probably being prolonged somewhat by reason of the fact that she had all of this pre-existing degenerative change.'

On cross-examination the witness testified that the X-rays showed a narrowing of the disc spaces in the cervical vertebrae, that such condition is not normal and that it might cause pain. He admitted that if 'this tearing or this acute muscular ligamentous strain was imposed on an arthritic spine' it would cause pain. With respect to the 'arthritic changes' he had found in the X-rays, the doctor testified that similar changes can be caused by trauma; but that when so caused are more localized and usually do not occur until a period of years later. He conceded that his X-rays could be interpreted 'or, depending on your viewpoint, misinterpreted' differently by other physicians.

Plaintiff's counsel in closing argument remarked to the...