Batten v. St. Louis Transit Co.

• Decision Date: 03 November 1903
• Citation: 76 S.W. 727,102 Mo.App. 285
• Parties: BATTEN, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Court of Appeals

76 S.W. 727

102 Mo.App. 285

BATTEN, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

November 3, 1903

Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.

AFFIRMED.

STATEMENT.

On the tenth of December, 1902, plaintiff undertook to board one of defendant's street cars traveling west on Chestnut street, in the city of St. Louis. The car, in response to a signal given by plaintiff's escort (Frank Chase), stopped at the northwest corner of Chestnut and Eleventh streets to allow plaintiff and others to get aboard. Two other ladies got on the car preceding plaintiff. Plaintiff was in the act of getting on and was in this position: with one foot on the lower step, holding to the handrail with the left hand, and her other foot raised to take a step onto the car, when the car started with a sudden jerk, threw her off her balance dragged and injured her.

Plaintiff testified in respect to the accident as follows:

"When I put my foot up on the car it was perfectly still, and took a hold, and at that time it started with a wicked jerk. I thought, and I just screamed as loud as I could, I thought I was, anyway, but I hung on; I don't know why I did, but I screamed and begged them to stop, just as loud as I could, I thought, and of course I don't know much other than that they picked me up. I remember starting to fall; I don't remember my hold breaking loose; I remember I had a hold tight, but it seemed as though it would pull this shoulder off, but I never thought of turning loose. I don't know why I didn't; I didn't think anything about it, but I remember it seeming as though my shoulder would break off and I was dragged down this way, it seemed to me; I know something was bearing me and I thought I was going under the car. . . .

"I don't know just the position, just the way I struck the street, but I remember when I was falling, and I know that it seemed to me that something was hitting me, I don't know but I know this side, this knee must have been dragging. The first I knew, they were picking me up and taking me into a little barber shop, a colored man's barber shop, and this right knee then was hurting me worse than anywheres, and two or three, I don't know how many, took me over to the dispensary; I think it is right across the street, and the doctors examined it."

From the dispensary plaintiff was conveyed by an ambulance to her home and a physician called in who attended her.

Frank Chase testified he was a roomer in plaintiff's house and on the day of the accident accompanied her down town. He said:

"I went with Mrs. Batten; she wanted to pay a little bill, and after she paid it, we started from Market street to Chestnut street to take the car at Eleventh street for her home. At that time I was boarding at her house with her. And the car came along and I signaled it, and there were two ladies there. The car stopped, the two ladies got on. One lady got onto the upper step, the platform; the other lady got onto the next step to it, and Mrs. Batten had one foot on the lower step and the other one was off from the ground as the car started. It started very suddenly; I think, perhaps, I would say, it started more suddenly than usual. It threw Mrs. Batten off onto the ground, and it was all done in a second, as we may say. She struck on the ground; I helped her up and we took her into a barber shop, and there we helped her across from the barber shop to the dispensary, and we called a physician there at the dispensary, that belongs there, and he examined her and he said she was hurt very bad."

In respect to her injuries, plaintiff testified that when she got home she was carried in and put to bed; that she was unable to turn over or be turned over for eleven or twelve days on account of soreness in her back, hip and shoulder; that she suffered great pain and urinary trouble followed the injury; that her knee had recovered, but her back and shoulder had not recovered; that at times when on her feet her right leg would give away and she would sink to the ground.

Dr. Reed, the physician first called by the plaintiff, testified that he found no bruises, but the parts were swollen; that there was a sprain and there seemed to be a great many muscles involved in the accident; that plaintiff had difficult and painful urination.

Dr. Reed did not visit her after the eighteenth of December, 1902. For some reason he was discharged and Dr. J. W. Vaughn was called.

Dr. Vaughn testified that he was called to see plaintiff on the nineteenth of December, 1902, and continued thereafter to treat her. He stated that he examined her the day he was called and found on the right knee an enlargement the size of a teacup; that the joint was evidently injured; that there was present an abnormal secretion of fluid in the part resulting from the injury; that he found a blackish bluish condition extending over a space about the size of his two hands on the right hip and the soft part of the hip was enlarged; that there was pain upon any slight pressure in the hip joint and the joint itself was evidently injured; that there was tenderness upon motion of the left shoulder, and that while the injury he found was not serious it was probably permanent; that a few days later he examined the spine and "found upon pressure at the lower part of the abdominal cavity that she had more or less tenderness there, but especially at the lower part I found tenderness upon pressure, which would indicate that there was some trouble with the bladder or womb;" that "on a later examination, about three weeks later, or four weeks later--yes, probably five weeks later--on another examination I found that the uterus had contracted in size, but was antroverted and tipped over upon itself and was resting upon the bladder, and it accounted for this pressure and frequent micturition and painful micturition. About a week ago I found the same position of the womb. I found on two subsequent thorough examinations that in the hip joint there is an effusion of fluid. This synovial membrane, which lubricates the joint there, is perfectly perceptible, no effusion in the joint, four months after the injury, showing that there is an inflammation. Not only do we find that there is effusion in the joint, but when you take that joint and turn it you will find a roughing sound, showing that not only is there synovial fluid in excess in it, but there has been an inflamed condition and that inflamed condition remains to the extent of having this roughened surface, and is indicative of the inflammatory condition. It may last all her life and then she may get over it. The longer you have a condition of that kind existing, say four months--if you get over it in two months, if the condition begins to get better in two months, the indications are they will get well much sooner, but lasting for four months, the indications are, in my judgment, that it will be more or less her lifetime, though no man can tell. But my judgment is, from the indications, four months, I say she will have more or less trouble there the rest of her life, because there is fluid in the joint."

He further testified that the hip joint is considered by surgeons to be the "most serious joint that may become injured, because of the support of the body and the blood supply. I want to state in addition that the hip itself, the bone, is still enlarged. There is tenderness as you press upon the bone itself, showing a thickening, evidently from the point of that membrane which covers the bone, the periosteum."

The evidence of Dr. Vaughn is corroborated by that of Dr. W. W. Vaughn and Dr. Fleming, both of whom made examinations of plaintiff. The examination made by Dr. Fleming was made only a few days before the trial. Speaking of the injury to the hip, Dr. Fleming said:

"Where the fluid is increased it is thrown out of that relation that is necessary in a joint that carries us on or makes us move along with an easy, gliding motion. If there is the least variation, a little excess of fluid, a little spasm of the different movements of the muscles that regulate this hip, as a result of that, when her mind is off guard, she necessarily will drop on that hip. It catches us; throws us back. You know we walk automatically; our mind is no longer on the walking, and whenever we have any trouble in our hip it throws us back to our childhood, and we have got to learn to use it all over again, where, if we unconsciously try to make steps, when we are not on our guard, a little excess of fluid, a little contraction of one of these muscles, when we are thrown off our guard, we fall. This is the explanation I would give as the reason for this."

The defendant produced as a witness, Dr. E. C. Grimm, a physician for the defendant company, who testified he examined the plaintiff on the day of the accident and thought she would get well in about three weeks; that he made another examination, in the presence of Dr. J. W. Vaughn, about two months later, and found no evidence of any injury to plaintiff's knee, hip, back or shoulder; that she moved about the house and went up the stairs without showing any signs of injury or weakness in the hip.

Dr. Campbell, a witness for defendant, testified that he examined plaintiff about a week before the trial and found no external evidence of any injury to her knee, hip or shoulder, and could discover no injury to either.

The jury found for plaintiff and assessed her damages at $ 2,000. A motion for new trial proving of no avail, defendant appealed.

Judgment affirmed.

Boyle Priest & Lehmann, Crawley, Jamison & Collet and Geo. W. Easley for appellant.

(1) Mental anguish can be a constituent element of damages only when so connected...