OPINION
SPERRY, C.
--Plaintiff,
who will be denominated herein as respondent, sued appellant
for personal injuries alleged to have been sustained by her
while a passenger on appellant's street car, about
February 3, 1930. Neither the sufficiency of the petition nor
of the evidence, is challenged. Therefore we shall not set
out the petition, and shall set out only such evidence as
bears upon the points raised herein. From a judgment awarding
damages of $ 5000 to respondent, this appeal is prosecuted.
Respondent was the first witness and testified that on the
occasion alleged she was a passenger on appellant's
street car and she rang the bell for a stop in the block
where she lived. She was standing in the aisle, holding a
sack of groceries in her left hand and holding on to the seat
grip with the other; that she put her pocketbook under her
left arm; that the pocketbook was a large brown one with a
metal frame and two buttons that snapped past each other.
These buttons were referred to by counsel for both plaintiff
and defendant in examining witness as knobs. The pocketbook
contained a bunch of keys, comb, pencil, mirror, small coin
purse, handkerchief, metal spectacle case and compact. The
car stopped abruptly, not in the usual way, and she was
thrown forward, her left arm striking the metal fare box with
great force. The knobs on the pocketbook caused a bruise
about the size of a quarter on her arm and after a few hours
she suffered pain in her arm and was sick at her stomach. She
had partially lost sensation in her arm, hand and two
fingers; her arm had shrunk some and there was atrophy of
some muscles. It is not necessary to go into the extent of
the injuries because no point is made on that in this case.
Dr.
Kuhn testified that he examined her after the injury and told
of her trouble with the arm, stating that her trouble was
"over the distribution of the musculospiral nerve. On
the back of the arm and the radial and median and ulnar
nerves." He testified that she, at the time of the
trial, hand "changes in sensation in her hand over the
branches of the median nerve and over the ulnar and also of
the radial nerve." He further described the
musculospiral, ulnar and median nerves and how an injury to
them by being cut or crushed would manifest itself in certain
parts of the arm, fingers and hand, going
into details from which it is inferable that the symptoms of
respondent were produced by some blow to the left arm,
resulting in injury to said nerves. The following
hypothetical question was asked of the witness:
"Q.
(By Mr. Bush) Doctor, I want you to assume that on the 3rd
day of February, 1930, Marie Carroll was a woman 44 years of
age and married; assume that in 1923 she had an operation for
toxic goiter and assume that she had a complete recovery
therefrom; that in 1926 she had an ovarian operation, at
which time her appendix was also removed, a small portion of
her uterus, and assume that she had a complete recovery
therefrom; that in 1930 she temporarily had pus in one of her
kidneys and after the removal of two infected teeth the
kidney cleared up so that she was no longer affected in any
way thereby; assume that in 1930 she had had her tonsils
removed successfully, and assume that in the middle of the
year 1933 she had a gall bladder disturbance, caused by gall
bladder salts or what is commonly known as gall stones, and
went to a hospital for observation and is still
inconvenienced to some extent by the condition existing in
her gall bladder; assume that prior to February 3rd, 1930,
she was in good health, except at the times stated, and able
to carry on the usual household duties of a wife as well as
perform the usual duties of a stenographer and secretary to
one of the Commissioners of the Supreme Court of the State of
Missouri, and assume that on or about the 3rd day of
February, 1930, she was a passenger for hire upon one of the
defendant's street cars, and that upon approaching her.
destination, at which place she desired to leave said car,
she gave the usual and customary signal in the manner
provided by defendant for the stopping of said street car,
and assuming after giving said signal she arose from her seat
and stood in the aisle of said street car, preparatory to
alighting therefrom, when the same should come to a stop, and
assume as she stood in said aisle of said street car she had
with her right hand hold of the handhold provided by
defendant and on top and at the corner of the seat, and
assume that she held a large pocketbook under her left arm,
which pocketbook had a metal frame with two metal knobs on it
and articles ordinarily carried by a woman in her pocketbook,
and also held a small package of groceries in a sack in her
left hand in front of her, and assume that when the street
car reached her destination where she desired to alight, said
street car came to a stop with a sudden, violent and unusual
jerk, causing her to turn the seat over, and break the hold
she had with her right hand on said handhold and causing her
to be thrown violently forward several feet and against the
fare box on said street car, thereby causing her to strike
her left arm against the corner of said fare box at a point
about midway between the shoulder and the elbow of her left
arm, and by the impact causing her body to press against the
pocketbook which was held under her left arm; assume that
immediately after the blow to her arm she did not suffer
pain, that there was only a blue spot the size of a quarter
on her upper arm; assume that during that night her arm
became numb as if it were asleep, with slight prickling
sensations in the elbow and little and ring fingers of the
left hand; assume that during the next day or so there was a
pain in the elbow and fingers and thereafter the pain in her
left lower arm became more intense; assume that she has
gradually lost the use of her left arm and partial paralysis
has set in on certain fingers and the thumb of her left hand;
assume that the flesh of her left arm and hand became flabby
and that there was pain in her upper arm and left shoulder
and pain at one time running up into her back, and assume
that the use of her left arm and shoulder has become more
impaired gradually by degrees from on or about February 3,
1930, down to the present time; that there is a general
atrophy of the muscles about the left shoulder, particularly
the deltoid muscle; assume that the left arm hangs rather
loosely, that the trophy of the deltoid muscle prevents
raising the arm to right angles or above the level of the
shoulder; assume that there is some wasting or atrophy of the
muscles of the left forearm, that there is a marked wasting
of the muscles between the thumb and index finger and also
some slight wasting of the inner-osseous muscles between the
carpal bones of the left hand; assume that there is a
complete loss of the use of the ring and little finger of the
left hand and that there is some disturbance or sensation
over these two fingers; assume that she has an inability
normally to extend the wrist on the left forearm and that all
movements of the left arm and hand are delayed and made with
great difficulty; assume that there are injuries in the upper
third of the arm and that there are injuries to the ulnar and
median nerves on the inner side thereof, and injuries to the
musculospiral nerve on the upper side, resulting in some
degree of paralysis both to the movement and of sensation in
the distribution of those nerves in the forearm and hand,
Doctor, I want you to state, if you can, whether or not in
your opinion the condition in which you found her when you
made your last examination could have been caused by the
force of the impact of her left arm against the fare box as
above described."
Appellant
objected to said question in the following terms:
"MR.
H. L. MOORE: That is objected to for the reason that it is an
improper hypothetical question, an attempt to usurp the
functions of the jury; that it is based on facts, some of the
facts not in evidence; that it omits other facts that are in
evidence that are necessary to form a fair conclusion, and
furthermore that the question is purposely complicated with
facts that have nothing to do with forming an opinion and
that are inserted in the question for the express purpose of
usurping the functions of the jury, and making the question
cover facts that have nothing to do with the injury."
And
then the following record was made:
"THE COURT: Will you kindly tell me what is
left out of the question which does appear in evidence?
"MR.
H. L. MOORE: It would take me quite a while to do it, your
Honor, but I can pick them out. To start out with, she had a
complete recovery from the goiter operation as hypothesized.
. . . .
"MR.
H. L. MOORE: The evidence in the case tends to show that she
had to take goiter extract for a great length of time up to
nearly the time of the trial of this case. That is left out.
. . . .
"MR
H. L. MOORE: My recollection is there was no evidence that
after the removal of infected teeth, pus in the kidneys
cleared up. It is assumed that she had her tonsils removed,
but it is not assumed that she had infected tonsils, which
was also true. I can go through the whole thing. Yes, the
description, for instance, of the bag that she had under her
arm, there are several things about that that...