Bone v. General Motors Corp.
| Decision Date | 13 April 1959 |
| Docket Number | No. 46793,No. 2,46793,2 |
| Citation | 71 A.L.R.2d 361,322 S.W.2d 916 |
| Parties | Winfred BONE, Respondent, v. GENERAL MOTORS CORPORATION, a Corporation, Appellant, and Robert Watkins, Defendant |
| Court | Missouri Supreme Court |
Francis R. Stout, Richard M. Stout and Kent E. Karohl, St. Louis, Wilton D. Chapman and Thomas W. Chapman, St. Louis, for appellant.
Hullverson, Richardson, Hullverson & Jeans, Eugene B. Overhoff, Orville Richardson, St. Louis, for respondent.
Plaintiff, a switchman for the Terminal Railroad Association of St. Louis, was injured while working inside the General Motors Plant at Natural Bridge Road and Union Avenue in the City of St. Louis. He sued General Motors Corporation and the driver of the truck which struck him; the driver was an employee of General Motors. The verdict of the jury was for the driver, Robert Watkins, and against General Motors in the sum of $20,000. The trial court required a remittitur of $2,500, which plaintiff duly entered; the motion for new trial being thereupon overruled, General Motors appealed.
The truck in question was one of several leased by General Motors (which we shall hereafter refer to as the defendant) from one Wallach, a scrap iron dealer; it was used for hauling trash. It will be necessary to describe the truck in some detail because of the unusual nature of the injury. It was a dump truck, a '54 Chevrolet, with 'lots of miles on it'; it had been used to haul trash and rubbish, and showed considerable use. Watkins had driven it before, but for how long is not shown. The rear doors or tail gates were of steel, hinged at the outer sides; when they were closed a metal bar or latch, fixed to one door, was dropped into a metal 'slot' on the other door to keep them closed. On this particular truck there was no other method of keeping the doors closed, such as a pin or locking device, and nothing to keep the bar or latch from bouncing. On the day in question, Jan. 3, 1956, at about 5:10 p. m. Watkins had taken a load of trash to the plant dump, had emptied it, and was returning to the plant; he testified positively that he had fastened the doors with the metal bar before leaving the dump.
Plaintiff was a member of a switching crew which was switching cars in the plant; at the point in question two switch tracks running east and west crossed a paved asphalt roadway running north and south. Plaintiff had seen these trash trucks go by occasionally for months. On this occasion he had been assigned by his foreman to 'guard the crossing,' or to see that no passing vehicles or persons were struck in the switching operation. He was standing near the west edge of the paving between the tracks; facing north, he saw the truck coming from that direction, at 15-20 miles per hour; he turned to his left and looked to the west to see if the way was clear of switching cars; just as he turned back he was struck by the swinging right rear door of the truck. He had not previously seen the door, and the predetermined course of the truck would have missed him by two feet or more. He was knocked against a pile of equipment and fell thence to the ground. Initially, he was struck on his right shoulder and, as he stated it, the 'lower and upper part of my stomach'; his back hit the pile of equipment. Someone stopped the truck and the driver came back; he had not previously known that he struck anyone. Plaintiff was taken in the switch engine to the 'yards' in the plant, and thence to the Missouri Pacific Employees Hospital.
The crossing immediately involved was built up with timbers to the approximate level of the asphalt roadway. No gross irregularities in the crossing are obvious in the photographs, and Watkins testified that it was smooth. He further testified: that on the way back from the dump he had crossed various tracks and that there were 'some holes in the road,' and 'some was pretty deep, too'; that he drove slowly because he had been instructed to do so, and that he was traveling around 10 miles an hour; that the doors had never opened on him before, and that he did not know what made them come open on this occasion; that he had not heard or felt any unusual motion of the doors or tail gates prior to the injury; that they had to fasten the doors to keep them from swinging and hitting new cars; that it was a part of his duty to keep the doors closed. Watkins had driven trucks for several years. There was no evidence of any inspection, repair or maintenance of this truck by anyone. Defendant's evidence consisted only of the testimony of its employee Watkins and certain medical evidence. The case was pleaded and submitted on the res ipsa theory.
Plaintiff was 35 years of age and married; he had been in railroad work for some years, and had been a switchman for the Terminal since 1950. He was in the hospital for a month on the first trip; he did no work until May or June, 1956 (the exact date being uncertain); he apparently worked part time in June and July, but was hospitalized again from July 31-Aug. 8, 1956; he did no work in August, beginning to work again in September; on July 3, 1957, he was again hospitalized for 5 days. Thereafter he worked to the time of trial, but he testified that he laid off occasionally for a day or two when he did not feel well enough to work. He was doing some over-time work. His principal injuries consisted of trauma to the soft tissues of his lower back and a 'paralytic ileus,' or cessation of the peristaltic contractions of the lower bowel. Immediate symptons of the ileus were much distension or bloating of the abdomen and a cessation of normal bowel movements, resulting from a paralysis of the automatic or sympathetic nervous system which stimulates the muscular action. This was said by one of the hospital physicians to have been due to contusion of the abdominal wall; one of plaintiff's medical witnesses, who had also attended him in the hospital, stated that the ileus could, with reasonable medical certainty, be said to have been caused by the blow; plaintiff's family doctor stated the opinion that the condition resulted from the trauma of this injury to the sympathetic nervous system, as evidenced further by plaintiff's continued constipation; that he could account in no other way for the persistence in the symptoms; also, that this condition was likely to cause trouble indefinitely. The acute ileus, characterized by distension and like symptoms, seems to have disappeared by April or May, 1956, but plaintiff testified that protracted and exaggerated constipation had continued to the time of trial, with occasional bloating, and that he was required to take enemas about twice a week. He further testified that he had never been troubled with this prior to his injury.
One of plaintiff's witnesses, Dr. Robert Funsch, had been called into consultation at the hospital as an orthopedist; he had also examined plaintiff shortly prior to trial. He testified that there was a 'contracture' of soft tissues (a shortening and fibrosis in ligaments and muscles) and tenderness in the lumbar area with a loss of normal flexibility and restriction of movement; that such a condition develops as an end result of demobilization or nonuser in the presence of pain, and that it could have been caused by the present injury; that plaintiff might well have further difficulty with his back, particularly from heavy work or in inclement weather, or when tired. The family doctor (Ciapciak) testified to restricted motion in the lower back, tenderness and muscle spasm in the lumbar area, all resulting from trauma, and with 'irreparable' injury to the soft tissues, tendons and nerves. He testified that, in view of the treatments already received, plaintiff would continue to have trouble for an indefinite period; and that his back condition was permanent. One of defendant's medical witnesses testified that plaintiff would have some slight permanent disability by reason of the restricted motion in his lumber spine, which he thought should not interfere with his work as a switchman. Some indication was noted in X-ray plates of an osteochondritis, or developmental irregularity, in the first and second lumbar and lower thoracic vertebrae (an area where there is comparatively little movement), but there was evidence for plaintiff that his pain and discomfort were due to his injury and not to this pre-existing condition. The same may be said of possible hypertrophic changes noted in the fifth lumbar and first sacral vertebrae, though it was admitted that one or both of these pre-existing conditions might have been aggravated by the injury. Plaintiff's back injury was the occasion for his last two hospital admissions and for the out-patient treatments; it also caused most, if not all, of the time lost from work after the first hospitalization. Treatments for his back consisted of heat, physical thereapy, exercises, electrical treatments and medication. Plaintiff testified: that his back still hurt him considerably, worse at some times than at others, that his legs bothered him when he sat still 'too long'; that he still used home treatments and made an occasional visit to his family doctor; that his fellow workers helped him some with his work; and that he had lost approximately 37 days of work since November, 1956, including the third hospital visit. He earned $4,808.95 in 1955, $2,356.16 in 1956, and $3,663.50 for 9 months of 1957. The record fairly showed a loss of earnings of from $2,500-$3,000.
Plaintiff admittedly sustained an injury to his right shoulder in this occurrence; no bones were broken there or elsewhere. He still complained at trial time of difficulty with the shoulder when performing the heavier parts of his work. Considerable testimony was adduced of the presence of a protrusion or ventral hernia on plaintiff's upper abdomen, running from the end of the breastbone to the umbilicus. This was said to protrude upon certain types of...
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