Carroll v. Mo. Power & Light Co.

• Decision Date: 15 June 1936
• Docket Number: No. 18345.,18345.
• Citation: 96 S.W.2d 1074
• Parties: MARIE N. CARROLL, RESPONDENT, v. MISSOURI POWER AND LIGHT COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

96 S.W.2d 1074

MARIE N. CARROLL, RESPONDENT, v. MISSOURI POWER AND LIGHT COMPANY, APPELLANT.

No. 18345.

Kansas City Court of Appeals. Missouri.

June 15, 1936.

Appeal from Circuit Court of Jackson County. — Hon. Thomas J. Seehorn, Judge.

AFFIRMED.

Charles M. Bush and Cowgill & Popham for respondent.

Moore & Moore and Irwin & Bushman for appellant.

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 were not in evidence, toilet articles that were in it and knobs that were on it, as I recollect, that I don't believe there was any evidence on. There was evidence that it had a metal frame. The fact of how she received the injury, that is included in the question, has...