Blanford v. St. Louis Public Service Co.
| Citation | 199 S.W.2d 887 |
| Decision Date | 18 February 1947 |
| Docket Number | 27137 |
| Parties | BLANFORD v. ST. LOUIS PUBLIC SERVICE CO |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
Louis E. Miller, Miller & Landau and B. Sherman Landau, all of St Louis, for appellant.
Mattingly Berthold, Jones and Richards and Douglas H. Jones, all of St Louis, for respondent.
McCULLEN
This action was brought by Cecil Blanford, as plaintiff, against the St. Louis Public Service Company, as defendant, to recover damages alleged to have been sustained by plaintiff because of injuries suffered by his wife, Mary Blanford, on July 9, 1945, as the result of being thrown from one of defendant's busses as she was about to alight therefrom. A trial before the court and a jury resulted in a verdict in favor of plaintiff and against defendant in the sum of $ 2,000. Thereafter, the court sustained defendant's motion for a new trial on the ground of error in giving Instruction No. 4, because, as stated by the court, said instruction 'does not correctly state the law and is in conflict with Instruction No. 3.' From said order granting a new trial plaintiff duly appealed.
No question is raised as to the pleadings herein and it is, therefore, unnecessary to set them forth.
It appears from the record that at the time of the trial plaintiff was stationed in Berlin, Germany, as a member of the armed forces of the United States and did not give any testimony in the case.
Plaintiff's wife testified that plaintiff was inducted into the army on July 9, 1945; that she and plaintiff were then living at 3842 Washington Avenue in St. Louis; that three days prior to that date they had gone for a visit to Ste. Genevieve, Missouri, but had returned to St. Louis on said July 9. On that date Mrs. Blanford, plaintiff's wife, boarded a westbound Page Avenue bus of defendant at Broadway and Washington Avenue in St. Louis. The bus proceeded on its regular route west on Washington Avenue to Spring Avenue, then went nonth on Spring Avenue to Grandel Square, which was the next street north of Washington Avenue. Mrs. Blanford testified that she signaled in the regular manner for the stop at the stopping place at Spring Avenue and Grandel Square; that the bus was brought to a stop; that the exit door was open for her to alight from the bus and that she was in the act of stepping from the exit step to the ground when the bus jerked forward into motion, throwing her to the ground; that she fell on her right side, striking her head and right hip on the ground; that she had a 'knot' on her head and injured her hip, her arm, her shoulder and back; that after lying on the ground for about two minutes she was able to get up and make her way to her home where she went to bed; that she was about two and one-half months pregnant at that time; that hemorrhaging started about 12 o'clock that night; that on the evening of the following day she was taken to the office of Dr. Jue who treated her and referred her for further treatment to Dr. John B. O'Neill, a specialist in obstetrics and gynecology; that about 2 o'clock the following morning she suffered a miscarriage and fainted and fell on the bathroom floor in her home; that thereafter she was treated by Dr. O'Neill and was still under his care at the time of the trial on May 16, 1946; that at the time of the trial she still had a stiff neck, backache, was nervous and had headaches; that before the accident mentioned she had no such feeling of pain in her neck or back, or nervousness; that she had never consulted a doctor for any of those things or conditions before the occurrence in question.
Mrs. Blanford further testified that about a year prior to the time of the accident herein she suffered a miscarriage which resulted from a faulty diagnosis by her examining physician; that on the assumption that she was not pregnant the doctor had given her an injection to induce menstruation and that these injections had brought about a miscarriage, but that after her release from the City Hospital on that occasion she had no further trouble until she was thrown from defendant's bus on July 9, 1945.
Mrs. Lona Sasser testified on behalf of plaintiff that at the time of the occurrence involved herein she lived at the same address as the Blanfords; that on Tuesday evening, July 10, 1945, she went with Mrs. Blanford to the office of Dr. Jue at Mrs. Blanford's request; that a Mr. Such who lived in the same rooming house accompanied them.
Dr. John B. O'Neill testified on behalf of plaintiff that he was a physician and surgeon and specialized in obstetrics and gynecology; that he first examined and treated Mrs. Blanford on July 14, 1945, at the request of Dr. Jue who was an osteopath; that he made a diagnosis of miscarriage; that Mrs. Blanford was bleeding and complained of headache and backache; that on a later examination at his office she complained of pain in her shoulder on manipulation, and that he found discoloration on her right hip. The witness was asked a hypothetical question embodying the facts involved in the accident as well as Mrs. Blanford's physical condition prior to and after the accident and gave it as his opinion that the miscarriage could be attributed to the injury or trauma sustained by Mrs. Blanford under the conditions assumed in the hypothetical question. In this connection the witness testified:
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The witness further testified that the miscarriage could be the inducing factor of the disturbance of Mrs. Blanford's nervous system. He stated that a reasonable charge for his services would be at least $ 100.
On cross-examination Dr. O'Neill testified that he saw Mrs. Blanford three times at her home before she came to his office; that he was inclined to think she was pregnant at the time of the injury because the uterus had diminished in size since the date of his initial examination; that he saw her at least twice a week the first month and perhaps once every three or four weeks thereafter; that at the time of the trial the witness did not think Mrs. Blanford had very much permanent injury, but that she stated she had pain and discomfort.
Dr. Olney A. Ambrose testified on behalf of defendant that he examined Mrs. Blanford at his office on October 25, 1945; that he made a complete physical examination of her pelvic organs and the nervous system and X-rayed her back; that he found no scars or discoloration or swelling, no spasm in the back nor interference with the movement of the hip joint; that he didn't find anything wrong with her womb; that her reflexes were 'pretty active'; that she complained of pain in her neck but that he found nothing apparently wrong with the neck; that she was 'pretty nervous, worried, perhaps, and upset along that line, but there was nothing to indicate any disease in any part of the nervous system'; that the fact that a miscarriage came on so soon after the accident could have been the result of the accident, but there was nothing to show any after effects; that he had made his examination of Mrs. Blanford at the request of the defendant.
Anthony Antonucci, the driver of defendant's bus, testified that he was working on the Page Avenue line in July, 1945, operating a bus for defendant; that the bus was due at the intersection of Spring Avenue and Grandel about 4:17 p. m.; that he didn't see any one fall from the rear door of his bus; that he heard no one scream or cry out, nor did any passenger report any such occurrence. On cross-examination the witness stated that he had testified in his deposition that sometimes operators do not know what has sometimes operators of the bus and that he has had people say that somebody fell on the bus, that somebody tripped or something; that then he would stop the bus and try to get witnesses who saw it; that it would be possible for a person to fall without the operator of the bus knowing it.
Defendant called as witnesses Herbert C. Snyder, George Robert Ralston and Dan Mudd who testified in behalf of defendant that they were operators of busses for defendant; that their respective busses passed the intersection of Spring Avenue and Grandel Square on the day in question around near the time that Mrs. Blanford testified she fell from the bus on which she was riding and that they had no knowledge of any unusual occurrence in relation to any bus of defendant at that time and place.
Instruction No. 4, for the giving of which the trial court granted a new trial, was as that if you find and believe from the evidence that the defendant St. Louis Public that the defendant St Louis Public Service Company was negligent as submitted in Instruction No. 1, and that such negligence, if any, caused the plaintiff's wife to be thrown from the bus and injured on the occasion in question, and that plaintiff sustained damages directly therefrom, then the defendant, St. Louis Public Service Company is responsible for all of the ill effects, if any, which were the direct, natural and necessary results of such negligence in the condition of health in which the plaintiff's wife was at the time of the injuries, if any, and you are instructed that it is no defense that the injuries resulting from said negligence, if you find they did, may have been aggravated or rendered more extensive or painful by reason of the pregnancy of the plaintiff's wife and her predisposition to suffer miscarriage, if you find she was pregnant and was...
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