Ballard v. Kansas City

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

86 S.W. 479

110 Mo.App. 391

SALLIE A. BALLARD, Respondent, v. KANSAS CITY, Appellant

Court of Appeals of Missouri, Kansas City

March 27, 1905

Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

R. J Ingraham, City Counselor, and L. E. Durham for appellant.

(1) It was reversible error for the trial court to instruct the jury in this case that they should assess damages in favor of plaintiff "for any pain of body and mental anguish that she may suffer . . . in the future . . . and for any permanent injuries she may have suffered." Defendant's evidence showed positively there was no permanent injury whatever. Albin v. Railroad, 103 Mo.App. 318; Batten v. Transit Co., 102 Mo.App. 285; Bigelow v. Railroad, 48 Mo.App. 367; Caplin v Transit Co., ___ Mo.App. ___; Schwend v. Transit Co., 105 Mo.App. 534, 80 S.W. 40; Girdes v. Iron Co., 124 Mo. 361; Smiley v. Railroad, 160 Mo 629. (2) Plaintiff's first instruction referring specifically to the facts in the case and purporting to present plaintiff's case to the jury, should have required the jury to find that the sidewalk in question described in the instruction, was not reasonably safe for travel at the time of the accident. Such finding is essential to plaintiff's rightful recovery.

Hamner, Hamner & Calvin for respondent. Filed an extended argument.

OPINION

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 one thousand dollars.

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 fifty years of age and in poor physical condition, being, as the physicians described her, "an anaemic." 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. Anyone 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 a 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 of enduring condition or result. It is essential to show the existence of such facts as a reasonable certainty; in other words, the very highest degree of probability must appear, but to compel the plaintiff to go beyond this, would be unreasonable--and doubtless would work injustice in many cases wherein the fact of permanency, though real, cannot be ascertained with positive certitude.

"In all likelihood" should be treated as the equivalent of reasonable certainty. Both expressions describe the same degree of probability--the highest. We may add that, in the interpretation of language employed by witnesses, the main object is not to draw fine distinctions based upon accurate definitions of words, but to ascertain the real idea intended to be expressed. Upon a careful examination of all of the testimony of this witness, no room exists even for a doubt that he intended to be understood as saying that in his opinion plaintiff's injuries are...