Buehler v. Waggener Paint & Glass Co.

• Decision Date: 23 May 1921
• Docket Number: No. 14054.,14054.
• Citation: 231 S.W. 283
• Court: Missouri Court of Appeals
• Parties: BUEHLER v. WAGGENER PAINT & GLASS CO.

230 S.W. 283

BUEHLER v. WAGGENER PAINT & GLASS CO.

No. 14054.

Kansas City Court of Appeals. Missouri.

May 23, 1921.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by Oliver Buehler, by his next friend, Mary Buehler, against Waggener Paint & Glass Company. Verdict and judgment for plaintiff, and from the action of the trial court in sustaining defendant's motion for a new trial, plaintiff appeals. Judgment reversed, and cause remanded, with instructions to reinstate verdict.

McCanles, Kennard & Trusty and H. Gamble, all of Kansas City, for appellant.

J. C. Rosenberger and Rollin E. Talbert, both of Kansas City, and Warren L. White, of Springfield, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $5,000, but the trial court sustained defendant's motion for a new trial, on the ground that the court erred in giving instructions, and plaintiff has appealed.

The facts show that on April 4, 1919, plaintiff, a boy 17 years of age, was in the employ of defendant as a helper in the art glass department on the fourth floor of its plant in Kansas City, Mo. About quitting time on that day, plaintiff and three other men entered the elevator at the fourth floor, to descend to the street. The opening into the elevator shaft was guarded by a gate 5 feet wide. This gate was constructed of three pine boards, running crosswise. These boards were about an inch in thickness and 2½ or 3 inches in width, and were held together and braced by other pieces of similar boards. The gate worked up and down, and was supported by a counterweight connected to the gate by a rope which passed over two pulleys. The gate was raised to a height of about 6½ or 7 feet and as plaintiff walked under it the operator of the elevator took hold of the gate, and pulled it down, striking plaintiff on the top of his head. Plaintiff would have been knocked down if he had not grabbed hold of the latticework. He staggered, holding to the latticework, until he reached the first floor. He was dazed, and stumbled against the gate when he was leaving the elevator at the first floor. He lived about four blocks distant, and walked home. He was suffering greatly and felt like "he wanted to pitch over frontwards." "I was just the same as a drunken man."

When plaintiff reached home he sat down in a chair for a short time, and then went to bed on a couch. This was about 5 or 5:30 that afternoon. He did not eat any supper that night. His mother bathed his head, and gave him some tablets to quiet him. He did not undress that night. His heat was hurting him where he had been struck; there was a swelling at that point about the size of a hen's egg. The next morning, which was Saturday, he did not eat very much breakfast, but went back to work and worked until noon, the regular quitting time. He worked, but he was "in misery all the time." The foreman asked him what was the matter, and he replied "I feel kind of dazed like." He did not tell the foreman what had happened the day before. He went home, had his dinner, and went to bed, but got up about 9 o'clock that evening. He was suffering from his head, and could not sleep. This kept him up all night. He stayed in bed the next day (Sunday), and Sunday night his mother gave him some medicine and put cold rags on his head, but he was not relieved. On Sunday or Monday, Dr. Davis was called. The doctor came on two different days. Plaintiff remained home Monday and Tuesday, in bed most of the time, not able to sleep, and suffering from his head, back of his neck, and his eyes. The back of his neck was numb and stiff, and he could not move it.

The following Wednesday he went back to work, and worked until Saturday, "sometime toward noon," when be quit on account of his head, from which he was suffering all the time. Fe told his foreman the reason for his quitting. He remained at home about four weeks, and then went to work for the American Railway Express Company as a freight handler. Fe worked at this four or five weeks, when he quit "on account of my head." "I got worse." Fe earned $12 per week while working for the defendant, and went to work for the express company at $80 per month, and was raised to $90 per month shortly after he went there. He suffered from his back, head, eyes, and his hearing. At the time of the trial, which was on January 10, 1920, he was still suffering from his eyes, head, and the back of his neck. His eyes pained him and "he has some kind of a blur before me." The back of his neck was "kind of stiff." Since his injury he goes to bed about 9 o'clock, and lies in bed an hour or an hour and a half before he can get to sleep, then he will sleep until about 12 o'clock, when he will get up on account of his head, and not being able to sleep any longer. Before his injury he was a bright, active boy, and played baseball, basketball, and football, and was interested in sports of this kind, but since his injury he does not engage in any such sports, feeing as though he did not want to do anything. Before his injury he was a good-natured boy, but since he has become morose, nervous, and irritable; his memory is impaired, and he hesitates before attempting to express himself, and has some stoppage in his speech; he is restless, and cries out in his sleep, and has dizzy spells.

While he was working for the American Railway Express Company, he laid off two weeks at one time, and four or five nights at another. He worked on the night shift on account of his head. He could stand night work better than he could day work. He could sleep better during the day than at night. In September plaintiff worked for the Forrester-Nace Box Company, and worked there for a week or two, earning 618 to $20 per week, when he quit and went to Eldorado, Kan., for a vacation and rest, on account of his nervousness and the condition of his health. When he returned he went to work for the Marcus Hoofing Company, where he worked four or five weeks, earning $18 per week for two weeks, after which he was paid $21 per week. He quit working for the Marcus Roofing Company voluntarily, and remained from work until the 6th day of December, when he went back to the American Railway Express Company, and worked until the 29th day of December. He had not worked since.

Plaintiff's mother testified that, on the night of the injury, she looked at plaintiff's head, and saw it had a ridge across it; that he remained in bed all night, but was restless, groaning, complaining and could not sleep; that he stayed in bed from noon the next day until Tuesday at 5 o'clock; that he stayed in bed "lounging around." He complained of his head, back, and eyes bothering him; he complained from the following Wednesday until Saturday, when he came home about 11 o'clock and said that he had quit his job because he could not work. She testified that at the time of the trial plaintiff was very nervous, had spells, and she had to give him medicine to quiet him; that he sleeps very little, will dress and come down stairs sometimes in the middle of the night, at which times he would be very nervous. She testified that for 10 years before his injury he did not have headaches; that now he has dizzy spells, and would get up in the morning and hold his head, saying, "I am dizzy."

Plaintiff's father testified as to the difference in plaintiff's nature, disposition, and habits since his injury; that he is very hightempered since the injury, and "gets up and down at night;" that "he gets to hollering, and one thing or another; " that he was not this way before he was injured.

Dr. McLaughlin, on behalf of plaintiff, testified that about eight weeks before the trial he examined plaintiff, and ascertained the nature of his complaint; that he found that plaintiff was suffering from acute meningitis of the brain; that plaintiff had dimness of vision, pain in the head, nervousness, and a fear of his physician, wanting to know if he I had to be operated upon; that his reflexes I were paralyzed, indicating a disease of the brain; that plaintiff had unsteadiness of gait, indicating cerebral irritation; that a (lesion and concussion of the brain can be caused from a blow on the head; that there is an alteration of the brain structure in concussion, and often there is a rupture of some minor blood vessel of the brain, causing a congestion of the brain; it might be one or many, and involving the whole brain or a portion of it. He testified that plaintiff had high blood pressure and rapid pulse, which was an unusual and abnormal condition for a boy of his age; that high blood pressure and a rapid pulse were often indicative of a nervous condition, due to some injury, or, at least, to some lesion; that an injury to the brain of the kind described would render a boy's disposition morose, and cause him to lose his boyish ambition to play; that, if there is an inflammatory condition present, it causes unnatural depression, anger, and irritability; that such condition of the brain affects the eyes by pressure, and produces partial paralysis of the optic nerve; that it affects the patient's ability to walk steadily; that it causes headaches and aphasia, the latter being loss of memory and inability to articulate; that he found plaintiff suffering from an impaired memory and inability to use the tongue; that the condition in which he found plaintiff's brain was, in his opinion, permanent in character; that the trend of such an injury is toward becoming chronic, or to grow worse. The doctor gave it as his opinion that the condition in which he found plaintiff could have been brought about "while the boy was standing upright, by having a heavy object brought down on his head."

On cross-examination, Dr. McLaughlin testified that plaintiff suffered from acute meningitis at the time he examined him, and that this condition could terminate in...