Brickell v. Fleming

• Citation: 281 S.W. 951
• Decision Date: 26 February 1926
• Docket Number: No. 25500.,25500.
• Parties: BRICKELL v. FLEMING et al.
• Court: United States State Supreme Court of Missouri

281 S.W. 951

BRICKELL v. FLEMING et al.

No. 25500.

Supreme Court of Missouri, Division No. 2.

February 26, 1926.

Motion for Rehearing Denied March 20, 1926.

Appeal from Circuit Court, Jackson County; Thad. B. Landon, Judge.

Action by Alice Brickell against Fred W. Fleming and others, receivers of the Kansas City Railways Company, and others. Judgment against defendant receivers, and they appeal. Affirmed.

Chas. N. Sadler and Mont T. Prewitt, both of Kansas City, for appellants.

Thomas Skidmore and Hogsett & Boyle, all of Kansas City, for respondent.

HIGBEE, C.

This is an action against Walter Vail, the Checker Cab Company, and the receivers of the Kansas City Railways Company for $35,000 damages for personal injuries sustained by plaintiff on November 23, 1921, while she was a passenger on a Checker taxicab driven by Walter Vail, which was struck by a west-bound street car operated by the appellants. At the close of plaintiff's case the court sustained a demurer to the evidence offered by the Checker Cab Company. The jury returned a verdict for the defendant Vail and the Checker Cab Company and against the receivers of the railways company for $25,000. On the hearing of the motion for a new trial, plaintiff entered a remittitur for $7,000, the motion was overruled, and judgment was entered for the plaintiff accordingly for $18,000, and the defendants, the receivers, appealed.

No question is raised on the pleadings. The facts as shown by the plaintiff's evidence are correctly stated by her counsel, and are as follows:

"This is an action for damages on account of personal injuries received by plaintiff on November 23, 1921, at the intersection of Fifteenth street and Woodland avenue in Kansas City, Mo. Fifteenth street runs east and west; is 77 feet wide from curb to curb at this point; and is intersected by Woodland avenue running north and south, which latter street is 30 feet wide from curb to curb. There is a double track street car line on Fifteenth street operated by appellants. At the time of her injury plaintiff was riding as a passenger in a taxicab, returning to her home from a maternity hospital, where two weeks before she had given birth to a baby. The cab was proceeding north on Woodland avenue-and crossing appellants' tracks when it was struck by appellants' west-bound street car, which car was running on the north track. The cab was proceeding slowly at about 8 or 10 miles an hour, and when it entered the intersection the street car was a block away. Michigan avenue is the first street east of Woodland, and from the center of Michigan Avenue to the center of Woodland Avenue is 300 feet. Appellants' motorman himself testified that the street car was a half a block away when the cab entered the intersection. When the cab started across the west-bound track the street car was 70 or 75 feet away. The cab was almost clear of the track when this street car, running at from 30 to 35 miles an hour, struck the cab at the rear end on the right rear wheel just opposite where plaintiff was sitting. The cab was hurled around in the street, apparently struck twice by the street car, and came to rest with the rear end almost against the curbing at the northwest corner of the intersection; the front end of the cab facing back in the direction from which it had come. The collision occurred in the middle of the intersection east and west, and a few feet north of the intersection north and south; the cab being, as stated before, on the north or west-bound track. The two tracks in the center of the street would take up about 15 feet of the 77 feet in Fifteenth street; leaving a distance of a little more than 30 feet from the curb on Fifteenth street to the first rail of the first track. Therefore this street car knocked this taxicab from approximately the center of the intersection diagonally to the northwest more than 30 feet. It is 256 feet from the center of Woodland avenue to the east property line of Highland avenue, the first street west. This street car ran a block before it stopped after the accident, stopping at Highland avenue, 256 feet west. The right rear fender of the taxicab was damaged, the spokes broken out of the right rear wheel, and the glass broken out of the panel in the body immediately over the wheel, and the rear axle knocked out of line. As no complaint is made that plaintiff did not make out a case for the jury against appellants or that she was guilty of contributory negligence, we will not further extend this statement of facts on the question of liability. Plaintiff was 35 years of age at the time of the accident, and the undisputed evidence shows she was a strong, healthy, vigorous woman, who had never had any medical treatment. She is described as being a woman whose `cheeks were plump and pretty, and she was always lively and healthy and strong, energetic, always full of pep. Whenever she went down the street she always attracted attention wherever she went.' The undisputed evidence also shows that following childbirth all of the muscles and ligaments in the abdominal and pelvic cavity are relaxed to a very great extent so that a woman under such conditions is far more liable to a dislocation or injury to the abdominal and pelvic organs. Dr. Cavaness, who had treated plaintiff during confinement and before the birth of her child, testified that she was apparently in excellent health. The undisputed evidence shows she had a very natural and easy delivery, and was in a perfectly normal condition up until the time when she left the hospital and met with this accident. As a result of the accident, she received a cut on the right side of the face about 4 inches long and a half an inch deep, in which six or seven stitches were taken, and which has left her with a permanent disfiguring scar 4 inches long on the right cheek somewhat depressed and adherent to the tissues, being irregular in outline, and extending horizontally from near the side of the nose backward toward the ear. This scar is very plain. She also received a fracture of the seventh rib on the left side, which was healed in bad position, and probably a fracture of three ribs on that side. Her left kidney was lacerated and crushed, and following the accident she passed possibly a teacup full of blood, and continued to pass blood in her urine for several weeks. Her uterus (which is unusually heavy this soon after childbirth) was completely retroverted and impacted, and the undisputed evidence shows that it is impossible for her to bear children with the uterus in that position, and that this condition can only be corrected by an operation. This condition has caused chronic constipation. A slight first degree tear of the perineum was extended into a second degree tear, which condition can be corrected only by an operation. Due to the relaxed condition of the muscles and ligaments in the abdominal and pelvic cavity, her stomach, liver and kidneys were displaced, and have dropped down, the stomach about 2 inches, the liver from 3 to 4 inches, and the kidneys about 2 inches. The dropping down of the stomach has resulted in a digestive disturbance, causing severe spells of bloating of the stomach several times a week. Plaintiff is, and has been ever since the accident, in an intensely nervous condition, unable to sleep at night, has lost much weight, her cheeks are hollow and sunken, and her complexion yellow, and, as one witness put it, she has apparently aged 20 years since she was hurt. She has intense pain in her left side and kidney;. chronic constipation caused by the retroverted uterus; and constant nervous headaches. She was in bed following the accident constantly for more than 2 months, and following that time, and up until the time of the trial, she had been `up and down' all of the time; being unable to do practically any work of any kind. For 5 days after the accident she was so helpless she could not even raise her head from her pillow, and was obliged to take nourishment and water through a tube. In short, the evidence shows that she had been completely transformed from a pretty, well, healthy, vigorous woman to a chronic invalid, suffering constant pain, with all of the attending disorders above enumerated."

The evidence for the defendants tended to prove that while the street car was approaching, and near to the intersection of Fifteenth street and Woodland avenue, on a down grade, and slippery track, the cab in which plaintiff was a passenger was driven onto the west-bound track directly in front of the street car; that the car at that time was running at about 4 or 5 miles per hour; that it pushed the cab to the north side of the track, but did not throw plaintiff from her seat in the cab; that plaintiff was 35 years of age, and had recently given birth to her first child, and that all the injuries she complains of, except the cut on her cheek, were caused by, and resulted from, giving birth to her child. Several of appellants' witnesses testified that, when the plaintiff got out of the cab, after the collision, she had a cut on her cheek that was bleeding profusely. The court overruled a demurrer to the evidence offered by the appellants, but no question is raised on that issue in the assignments of error.

[1] 1. The first assignment is that the court erred in sustaining the demurrer to the evidence interposed by the Checker Cab Company at the close of plaintiff's case. Appellants cite no authority in support of this contention.

In Leighton v. Davis (Mo. Sup.) 260 S. W. 986, 989, we said:

"If the plaintiff sustained injuries as the result of the joint negligence of the defendants. they were jointly and severally liable in damages to him. and. if the court erred in giving this instruction, the plaintiff is the only one prejudiced thereby and the only one entitled to complain of the error."

See, also, Clark v. R. R. Co., 137 S. W. 583, 234 Mo. 396, 424, and cases cited. We need not, therefore,...