Ballard v. Kansas City

• Decision Date: 27 March 1905
• Citation: 86 S.W. 479,110 Mo. App. 391
• Parties: BALLARD v. KANSAS CITY.
• Court: Missouri Court of Appeals

86 S.W. 479

110 Mo. App. 391

BALLARD v. KANSAS CITY.

Kansas City Court of Appeals. Missouri.

March 27, 1905.

MUNICIPAL CORPORATIONS — DEFECTIVE SIDEWALKS —DAMAGES— PERMANENT INJURIES — EVIDENCE—FUTURE PAIN AND ANGUISH—INSTRUCTIONS.

1. Plaintiff sustained a broken collar bone. The broken end of the bone failed to join, but overlapped. The shoulder dropped forward, ligaments were shrunken, the muscles atrophied, and the arm was reduced in size and bereft of strength. Plaintiff was 50 years of age, of delicate constitution, and physicians testified that the union of the bone was very poor, and that she would continue to suffer great pain as the result of her injury. Held, that such facts were sufficient to raise the issue of the permanency of plaintiff's injuries.

2. Where a physician testified that the results of plaintiff's injury in all "likelihood," were permanent, the term quoted should be treated as equivalent to "reasonable certainty."

3. An instruction authorizing the jury to allow damages for any permanent injuries plaintiff "may have suffered by reason of the injury in question, if any," was not objectionable as permitting the allowance of such damages based on mere probability or conjecture.

4. Where there was a conflict in the evidence as to the permanency of plaintiff's injury, and the jury was free to reject such claim entirely, an instruction authorizing a recovery for such bodily pain and mental anguish as plaintiff "may suffer by reason of her injury in the future, if any," was erroneous, as not limited to the bounds of "reasonable probability."

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by Sallie A. Ballard against Kansas City. From a judgment in favor of plaintiff, defendant appeals. Reversed.

R. J. Ingraham, City Counselor, and L. E. Durham, for appellant. Hamner, Hamner & Calvin, for respondent.

JOHNSON, J.

Action for damages resulting from personal injuries sustained by plaintiff in consequence of the negligence of defendant in maintaining in a defective and out of repair condition a board sidewalk on Agnes avenue, between Eighteenth and Nineteenth streets, in defendant city. Plaintiff, while walking thereon in May, 1900, tripped over a loose board and fell, from which she suffered various bodily injuries. The trial resulted in a judgment for her in the sum of $1,000.

Defendant complains of the submission to the jury of the permanent character of the injuries received, as an element of damages, and asserts the evidence thereof is insufficient to support the instruction which presented that issue. From plaintiff's evidence, it appears her right collar bone was broken, and, in healing, had failed to unite properly. The trial occurred in May, 1903, three years after the accident, and at that time she was still suffering a practical disablement of her right arm. She was then 50 years of age, and in poor physical condition; being, as the physicians described her, "an anæmic." When upon the witness stand she was interrogated by her counsel relative to existing indications of injury and said: "There is a protuberance on the collar bone and the leaders in my shoulder are very much shrunken. Any one can see it. It lets my shoulder droop over; that is, this shoulder droops front, instead of being straight, as the other side is. * * * The leaders are all shrunken, and my arm is so weak I cannot raise it scarcely at all." Plaintiff also testified that she had at all times suffered much pain, and had been unable to do her work. In all of her statements relative to her condition, pain, and suffering, and inability to use her right arm, as well as those describing the influence produced by her injuries upon her general health, she was corroborated by other witnesses. Two doctors also were introduced as witnesses in her behalf. One of them (Dr. Fulton) said in answer to an inquiry about her collar bone: "It has been broken right close to the shoulder joint. There is union there, but it is not good union. There is unquestionably a stiffness when you raise that arm. Sometimes we say that the patient complains of pain, and that there is no way you can tell whether there is pain or not. This is not true of her. There is a severe pain when she wrenches that arm, decidedly. I wrenched it pretty hard right now to detect whether there was any, and what kind of union there was in that portion of the shoulder bone. Well, there is union—poor union, very poor. There is considerable ankylosis (stiffening) in that portion of the joint. * * * The conditions are there plainly enough." On cross-examination: "Well, the shoulder in this kind of a case— Where you don't get the bones exactly in apposition for some cause—in this case the bones are overlapped—the shoulder droops forward." And on redirect examination: "If you put the ends of the bones exactly as they were when the bones were broken, exactly—if it can be done—you would expect no pain whatever. The pain is only caused by a slight dislocation—a slight elevation or depression, either sideways or any other way. That is what causes pain—by pressure on the nerve. It is sometimes pretty hard to get them in apposition. You cannot always get them in perfect apposition, but when they are in perfect apposition there is no pain. Where they are not, there is a great deal of pain." The other expert, Dr. Jones, found the same conditions as those testified to by Dr. Fulton. He further testified as follows: "Q. Now, I will ask you if her injury, in your opinion, is permanent? A. Well, I think the results of the injury, in all likelihood, are permanent." It is said the word "likelihood," used by this witness, falls short of including within the scope of its meaning that degree of certainty which has been held elemental to the right to recover on account of the permanency of injuries sustained. It is not required of the plaintiff to prove, nor of the jury to believe in, the absolute certainty...