City of Rock Island v. Starkey

• Decision Date: 20 February 1901
• Citation: 59 N.E. 971,189 Ill. 515
• Parties: CITY OF ROCK ISLAND v. STARKEY.
• Court: Illinois Supreme Court

189 Ill. 515

59 N.E. 971

CITY OF ROCK ISLAND

v.STARKEY.¹

Supreme Court of Illinois.

Feb. 20, 1901.

Appeal from appellate court, Second district.

Action by Belle Starkey against the city of Rock Island. From a judgment of the appellate court (91 Ill. App. 592) affirming a judgment in favor of plaintiff, defendant appeals. Reversed.

Magruder, J., dissenting.

Searle & Marshall and John K. Scott, for appellant.

Jackson & Hurst and Rickel & Crocker, for appellee.

CARTWRIGHT, J.

The appellate court affirmed a judgment recovered by appellee in the circuit court of Rock Island county against appellant for damages on account of an injury alleged to have been received by falling on a defective sidewalk. The declaration charged that the defendant wrongfully and negligently suffered said sidewalk to be and remain in bad and unsafe repair and condition, and divers of the stringers and planks wherewith the said sidewalk was laid to be and remain rotten, broken, and unfastened. It was denied that the sidewalk was out of repair, but the principal defenses presented under the plea of the general issue were that the sidewalk was not located on a public street of the defendant, that the alleged permanent injuries and bodily infirmities of the plaintiff had no existence, and that such disorders and infirmities as she had did not result from her fall, but existed previously and were of long standing.

It is assigned as error that the circuit court refused to grant defendant's motion for a continuance or postponement of the trial. But the abstract does not show the grounds of the motion, or the affidavits in support of it. The bill of exceptions, as abstracted, contains only the following: ‘Motion and affidavits by defendant for continuance. Motion for continuance overruled. Motion for a postponement. Motion overruled by the court, and jury selected and sworn.’ Presumably, the ruling of the court was right, and there is nothing to show that it was wrong.

The sidewalk in question was on the west side of the alleged street, which extended south from Fifth avenue up a hill. The evidence for the plaintiff was that she was walking, in company with her husband, from Fifth avenue along this sidewalk; that her husband was walking on her right, and when about halfway up the hill, owing to one of the boards being loose and his stepping on the end, it tipped and caught one of her feet, so that she was thrown forward upon the sidewalk; that immediately afterwards, she suffered greatly from her injury, and had convulsions, vomiting, sinking spells, excruciating pains, and other difficulties, for some time; and that she suffered permanent injuries by her spine becoming curved forward in the small of her back, so as to make a hollow place, much more pronounced than natural, and her right leg becoming paralyzed. As to the injuries and the resulting consequences, her attending physician, Dr. Charles C. Carter, was her principal witness. He attended her from the next day after the accident, July 6, 1896; and he testified that he found a little swelling across the top of her foot, partly discolored, which was the only external evidence of her injury. He also testified to her having convulsions, vomiting, setting her teeth, choking sensations, loss of voice, symptoms of spinal meningitis, and other ailments. His testimony and all the evidence on both sides was that she was an hysterical subject, and he said that her symptoms were characteristic of hysteria. It was proved that long before this accident she had substantially the same symptoms and physical troubles, with the exception of the alleged difficulty with the spine and paralysis of the right leg. These were the main injuries which the evidence in her behalf tended to show resulted from the fall, and they were the main injuries for which she sought to recover. In the opinion of Dr. Carter, there was an anterior curvature of the spine, making a hollow in her back, and her right leg was completely paralyzed; and there were other witnesses, both lay and medical, who testified to the same conditions. As against these alleged permanent injuries, the defense made at the trial was that there was no deformity or abnormal curvature of the plaintiff's spine, that her right leg was not paralyzed, that she was an impostor and a fraud, and that her alleged injuries of that kind were feigned. There was a sharp contest over this question, and the evidence was in irreconcilable conflict. The condition of plaintiff's back was presented as accounting for the paralysis of her leg, and it was claimed that she had not used the leg since the accident. The evidence on both sides was that the right leg was slightly larger, by measurement, than the left; that the color was good, and the muscles firm and as well developed as those of a sound leg; and that there was no atrophy or wasting. It was insisted on one side that, if there had been paralysis and entire disuse, there would be atrophy and shrinking, and on the other hand that there might not be.

In January, 1899, two years and a half after the accident, and a few months before the trial, an examination of the plaintiff was made by three physicians, at which Dr. Carter was present. These three physicians testified that there was no deformity of the plaintiff's spine; that there was a curve just above the hips, which was entirely natural; that plaintiff was a large and fleshy woman; and that thick layers of flesh and fat just below the alleged curvature created the appearance of a depression. They said they made a very careful examination, and used all the known tests, and found there was no difficulty with the spine. Their evidence tended to prove that plaintiff feigned the existence of painful areas in her body, and would cry out on pressure, but if her attention was attracted elsewhere she would not notice pressure at all. They also testified that the muscles of the leg were active and perfect; that they had her get out of bed, and saw her move the leg in doing so; that while she was sitting in a chair one of them lifted the leg off of the floor and extended it in a horizontal position, and then removed the support; and that she held the leg in that position a short time, and then let it down slowly to the floor. They said that this test demonstrated that she had muscular action, that if the limb was paralyzed the muscles would be paralyzed, and that it required muscular power to hold it up and let it down as she did. Their conclusion was that there was no paralysis whatever. One of these physicians did not leave the house with the other two, but remained with Dr. Carter, the attending physician. He testified that he then said to plaintiff, ‘Mrs. Starkey, if that leg is paralyzed, why in the world didn't it drop?’ That she said she had rheumatism in the knee joint; that he then let the leg go, and the instant he did so it fell to the floor. There was also evidence of Dr. Carter and others of her own witnesses that she had previously attempted to deceive them in respect to other physical manifestations, and the medical testimony was that such attempts at deceit were characteristic of hysteria. After the defense closed their evidence, the plaintiff called Dr. Carter in rebuttal. He then testified that there was a species of paralysis in which a leg might be extended a moment before it would fall, and then fall irregularly, in little jerks. This, he said, was spastic paralysis, which, being interpreted, means paralysis of a spasmodic character, where there is contraction and rigidity. He said that in that sort of paralysis the leg might become fixed like a lead pipe. When he was on the stand before, he had testified to a condition of ordinary paralysis, and in speaking of his tests said, ‘I raised the leg, and it always dropped.’ When recalled he said he was surprised to see the leg acting the way it did at the examination, but he also said he noticed the spastic condition first in December,-a month before the examination, after he had been attending plaintiff about 2 1/2 years. He said that after the other physicians had gone, when the remaining one asked plaintiff why she did not drop the leg if she had paralysis, and he extended the leg and let go of it, it did drop quicker than when they were all examining it, but that it still retained some of the spastic condition. After this testimony, defendant sought to recall two of the physicians who were present at the test, but the court refused to allow them to testify. We think fairness required that the defense should have been allowed to meet this proposition. All the testimony for the plaintiff up to that time had been that the leg was limp and useless, and there was no hint of any rigid or spastic form of paralysis. It had not been so much as suggested that plaintiff had an exceptional sort of paralysis, but it was entirely new matter and a new theory. The question how the leg would act if suffering from spastic paralysis had not been raised. The existence of this particular variety of paralysis was not entirely consistent with the previous evidence for the plaintiff, and, when the new theory was presented, defendant ought to have been allowed to show that the symptoms were not of that kind. The argument in support of the ruling is that it would be simply going over what the physicians had already testified to. They had testified that they saw plaintiff move the leg in getting out of bed, and that the leg did not immediately fall when the support was removed, and that she could not have had paralysis and held it as she did. Of course, it would not be proper to allow the witnesses to be re-examined to prove the same facts, but Dr. Carter testified that the leg would remain extended for a time and go down by little jerks. To re-examine the doctors to show whether it went down a notch at a time, by little jerks, or whether it manifested rigidity or tonic spasm or the symptoms of spastic...