De Courcy v. Prendergast Const. Co.

• Decision Date: 08 June 1909
• Citation: 140 Mo. App. 169,120 S.W. 632
• Parties: DE COURCY v. PRENDERGAST CONST. CO.
• Court: Missouri Court of Appeals

120 S.W. 632

140 Mo. App. 169

DE COURCY v. PRENDERGAST CONST. CO.

St. Louis Court of Appeals. Missouri.

June 8, 1909.

1. MUNICIPAL CORPORATIONS (§ 821)—PERSONAL INJURIES — CONTRIBUTORY NEGLIGENCE—QUESTIONS FOR JURY.

In an action for personal injuries to plaintiff through falling over an obstruction placed on a sidewalk by defendant, the questions of plaintiff's contributory negligence and assumption of risk held, under the evidence, for the jury.

2. APPEAL AND ERROR (§ 1068)—HARMLESS ERROR.

In a personal injury action, an instruction that the jury might allow plaintiff for any expense paid for medical care and treatment as they might believe from the evidence became necessary in consequence of the injury was not prejudicial, though the petition only claimed $150 on account of such expense; the evidence clearly showing that the total cost to plaintiff was $108.

3. EVIDENCE (§ 555) — EXPERT EVIDENCE — FACTS BASIS OF OPINION—EXPRESSIONS OF PAIN TO DOCTOR.

In a personal injury action, complaints or statements of present symptoms made by plaintiff to his physician, and on which the latter's opinion as to plaintiff's condition was based, were admissible in evidence in connection with the opinion and as its basis.

4. EVIDENCE (§ 506) — OPINION EVIDENCE — MEDICAL EXPERTS.

In a personal injury action, a medical expert was properly permitted to testify that plaintiff's condition might have been caused by the accident; it not being an invasion of the province of the jury.

5. DAMAGES (§ 158)—PERSONAL INJURIES — PERMANENT INJURIES—PLEADING.

In a personal injury action, damages may be recovered for permanent injuries, though the petition does not allege that the injuries are permanent.

6. DAMAGES (§ 131)—PERSONAL INJURY—EXCESSIVE DAMAGES.

Where plaintiff's leg as a result of a fall over an obstruction placed on the sidewalk by defendant was severely bruised, and he was unable to lie down at night and sleep after the injury, many nights not sleeping over four hours, though before the accident he had slept soundly, and he was compelled to continually consult doctors, and physicians testified that he was neurasthenic, and that such condition might have been caused by the fall, that they found signs of laceration of ligaments between the vertebræ at the lower end of the spine and effusion of blood there, but there was no evidence to prove that the consequences of the injury would be permanent, or that plaintiff would suffer a permanent loss of virility, a verdict for $4,500 was excessive; $3,500 being ample compensation for the injuries.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by George T. De Courcy against the Prendergast Construction Company. Judgment for plaintiff, and defendant appeals Judgment affirmed if plaintiff remit $1,000, otherwise reversed and remanded for new trial.

A. R. & Howard Taylor, for appellant. Richard F. Ralph, P. H. Cullen, Thos. T. Fauntleroy, and Shepard Barclay, for respondent.

GOODE, J.

Plaintiff asks damages for a personal injury alleged to be traceable to defendant's negligence. It was suffered in a stumble over an iron rail extended across the sidewalk on the west side of Tower Grove avenue, in the city of St. Louis. The rail was 4 inches wide at the base, 3½ inches high, and at an elevation of 8 inches above the surface of the walk. Defendant was engaged in excavating a sewer in an alley midway between Norfolk and Swan avenues, east and west thoroughfares, and intersecting Tower Grove avenue, a north and south thoroughfare. A machine called a "tower wagon" from 14 to 16 feet long and 9 to 10 feet high was used in the work. No description imparting a clear notion of this machine is given in the testimony, but we learn the tower wagon, or some part of it, was moved by steam power forward and backward in the alley on two rails which extended across the sidewalk of Tower Grove avenue, as said, eight inches above the walk. Connected with the tower wagon and overhanging the sidewalk six or seven feet above it were large cans used to hoist and carry the dirt taken out of the sewer trench. The tower wagon, boiler, and engine stood in the driveway of the street nearer the east than the west side, but leaving plenty of room for a wagon to drive between them and the east curb. A street lamp stood on that side of the street a foot or two north of the alley, but the light from this lamp was intercepted by the engine, boiler, and tower wagon standing in the street some ten feet from the west curb, and, instead of a pedestrian on the west sidewalk being helped by the light in crossing the alley, he passed into the shadow cast by said machinery. The accident happened around 6:30 o'clock p. m. of December 5, 1905. Plaintiff, who resided on Swan avenue, the rear of his lot abutting on the alley in which the excavating was in progress, was walking in the middle of the west sidewalk of Tower Grove avenue on his way home from his daily work when he fell. When 50 feet away, he saw the engine and boiler and the framework of the tower wagon hanging above the walk and extending back into the alley, and knew those appliances were used in digging the trench. As he walked he looked straight ahead or northward, passed under the framework, struck his leg, between the knee and ankle, against the south one of the two rails extended above the walk, was thrown down, and injured. He testified no danger lamps were placed above the rail to warn pedestrians, and that it was very dark under the framework, which he could see, but could not see the rails. On arising after his fall, he stooped to learn what had tripped him, and then saw the rails. He went on home, not thinking his hurt serious, but awoke in the night suffering from pain in his head and back, was treated by a doctor every other day for two or three weeks, and suffered from pain for at least six weeks. His leg was black with bruises. He further testified he had been unable to lie down at night and sleep since the injury; many nights did not sleep over four hours, though before the accident he had slept soundly; had consulted four doctors and at the time of the trial was still consulting doctors; had consulted one of them 100 or 150 times. Plaintiff testified complete sexual impotency had resulted from the fall. Physicians swore he was neurasthenic and the condition might have been caused by the fall, found signs of laceration of the ligaments between the third, fourth, and fifth lumbar vertebræ at lower end of spine, and effusion of blood there. As to his knowledge of the location of the machinery and rails, plaintiff said he had seen the framework and scaffolding of the tower wagon from his back porch, but could not see the rails across the sidewalk; that, when hurt, he was walking straight along and saw there was enough room for him to pass under the framework, and never thought of being tripped by anything—could not see anything that would trip him. A young lady who was about 50 feet behind plaintiff saw him as he walked ahead of her until he fell and disappeared. She said she could see the framework of the machinery above the sidewalk for 50 feet, that plaintiff shouted to her after he fell there was something across the walk, and just before she reached...