Burton v. Wm. J. Brennan Grocer Co.

• Decision Date: 05 February 1929
• Docket Number: No. 20574.,20574.
• Citation: 13 S.W.2d 567
• Parties: BURTON v. WM. J. BRENNAN GROCER CO.
• Court: Missouri Court of Appeals

13 S.W.2d 567

BURTON v. WM. J. BRENNAN GROCER CO.

No. 20574.

St. Louis Court of Appeals. Missouri.

February 5, 1929.

Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.

"Not to be officially published."

Action by Rose Burton against the Wm. J. Brennan Grocer Company. Judgment for plaintiff, and defendant appeals. Affirmed.

W. E. Moser and J. C. Jaeckel, both of St. Louis, for appellant.

Mark D. Eagleton, of St. Louis, for respondent.

HAID, P. J.

The plaintiff (respondent) brought suit to recover damages for injuries she sustained on January 5, 1927, when she was knocked down and dragged by defendant's automobile while she was proceeding along a sidewalk on the south side of Gravois avenue in St. Louis at about 9:30 a. m. At the trial the defendant made no contention as to its liability, and therefore the trial was addressed solely to the questions of the extent of plaintiff's injuries and the amount of damages she was entitled to recover. A verdict for $7,500 was returned in her favor, which was attacked by motion for a new trial on the ground that it was excessive and showed bias, passion, and prejudice on the part of the jury. The motion for a new trial was overruled by the trial court.

There is some dispute in the evidence as to the extent of the injuries suffered by plaintiff. When the automobile struck plaintiff, she was knocked down and dragged and rolled some 15 to 20 feet and was caught by the rear axle housing when the truck stopped. She was then unconscious, cut and bleeding, and was taken into a store, where first aid was rendered, and remained unconscious for a half hour, when she was taken home and her physician called to treat her. She testified that the machine passed over her right leg; that since the accident that leg gave her plenty of trouble; that the left leg was so seriously injured that the very instant she walked a little too much on it, she was compelled to go to bed or sit down, and that it gives way and she sometimes falls; that she cannot do her housework as she had been accustomed to doing it and has not been able to do any washing, ironing, or scrubbing; that her back bothers her when she attempts to stoop and that she suffered irregular menses, the periods occurring twice monthly; that she has been suffering severe headaches.

Dr. Beisbarth, the physician who was called at the time of the injury, found the plaintiff had a lacerated wound on her cheek, lacerated wound on her right buttock, bruise and a hematoma or large lump, bump as you might call it, back of the right ear; bruises and contusions of the right upper leg, the left knee, and across the back, bruises and contusions; he dressed her wounds, called to see her daily during the first ten or twelve days, after which he called at her home about twice a week for a period of two months, and thereafter she called at his office on an average of once every week or ten days up to the time of the trial; he diagnosed the injury to her left knee and leg as bruises and contusions of the left knee and a resulting bursitis, a swelling and enlargement of the fluid from the injury to the joint; he diagnosed the injury to her back as bruises and contusions of the tissue with evident lacerations of the muscles and tendons of the pelvic — posterior pelvis, and he prescribed for her menstrual condition; the bruises, contusions, and lacerations healed in two or three weeks, but the menstrual and knee conditions persisted. He diagnosed her head condition as concussion of the brain, and that at the time of the trial there was still evidence of severe injury to the muscles and tendons of the back.

Dr. Pernoud, who examined the plaintiff shortly before the trial, testified that he found her left knee visibly enlarged; that at the central part of the kneecap of her left limb it was one inch greater in circumference than the right knee; that there was an increase in the bursa on the front of the kneecap, and that the left knee joint, on movement, had crepitation or a grating condition, the vibration of which could be felt by the hand over the knee joint; that in his opinion the injury, particularly to the knee, would persist in the future, because the knee joint bears half the weight of the body at times, and in walking it bears the entire weight of the body during that time; that such cases sometimes improve, but in the majority of them the joint never gets well; that they show some improvement but never make a complete recovery; that it is certain that the left knee at the time of the trial was in a painful condition, as was also the condition of the injuries to her back; that in other respects the injuries she suffered at the time of the accident are no longer painful; and that she will continue for an indefinite period with the irregular menstruation of which she complains.

Defendant introduced a physician, who also examined plaintiff just prior to the trial, and testified that he found several scars, one on the right side of her face, another, about the size of a half dollar, over the patella or knee joint, a large scar on the posterior portion of the right hip, extending transversely down and across the large muscles that one sits on, the scar not being adherent to the deep tissues, and a superficial scar on the top of the right shoulder. X-rays did not disclose any fracture or dislocation of the pelvis, spine, and left knee, or other bone injury. "* * * That he made a bimanual examination of the pelvic organs, but was unable to find any evidence of disease of those organs, there was no inflammation, no disease and no anatomic peculiarity that he could deduce; that he had plaintiff do the ordinary bending motions that are used to test out the function of joints, and found that she could perform those motions with the limitation that large people had, plaintiff weighing 207 pounds; her bodily motions were not as free as some thinner persons' but he thought that the limitations of motion were due to excess fat. He stated that he examined plaintiff's knee and found the right one to measure eighteen and three-quarters inches above the patella, seventeen and a half...