Craig v. United Rys. Co. of St. Louis

• Decision Date: 31 March 1916
• Docket Number: No. 17554.,17554.
• Citation: 185 S.W. 205
• Parties: CRAIG v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

185 S.W. 205

CRAIG v. UNITED RYS. CO. OF ST. LOUIS.

No. 17554.

Supreme Court of Missouri, Division No. 2.

March 31, 1916.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Samantha E. Craig against the United Railways Company of St. Louis. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Plaintiff has appealed from a verdict against her in a suit for damages for alleged personal injuries. The petition alleged that on February 2, 1911, the trolley car of defendant on which plaintiff was a passenger "split the switch" at Hamilton and Easton avenues, causing the rear truck to take a different track from that taken by the front truck, thus violently jerking said car, throwing plaintiff between, against, and across the seats of said car with great violence. The injuries are therein alleged thus:

"And by reason of said jerking and throwing, plaintiff was put in peril of her life and great bodily harm, and was greatly, painfully, seriously, and permanently bruised, hurt, wounded, and injured by shocking, jarring, and bruising her side, hips, and back, fracturing two of plaintiff's ribs, and dislocating her kidneys, and greatly shocking her nervous system."

The damages were laid at $25,000. The answer was a general denial. The plaintiff, not long before the trial, had recovered judgment against the defendant for alleged personal injuries suffered by her on February 2, 1909, while in the act of leaving one of defendant's cars. The judgment in that case was affirmed after the trial in this case, and is reported in 175 Mo. App. 616, 158 S. W. 390. The allegations in the petitions in the two cases were entirely different as to the facts out of which the respective injuries arose, and the numerous allegations as to the injuries in the two cases were about half the same in the two petitions and different as to the other half.

The evidence in this case shows that the plaintiff was the only passenger on the car at the time. She was then 37 years old, the mother of four children, and living apart from her husband. The car was passing over the switch just prior to stopping, and the plaintiff was standing in the car preparatory to leaving it when it should stop. The front truck kept the track, but the rear one passed off along the switch track, the two trucks thus going away on diverging tracks. The evidence as to the speed of the car was conflicting. The evidence for both sides, including that of the conductor and motorman, who testified for defendant, was that the car split the switch, and that its momentum was such as to put the car in such a position that it could not be moved without the assistance of the wrecking crew.

Two policemen were standing at the United Railways station. Both heard the noise of the accident, and one said that "it made quite a good deal of noise." The motorman testified that his car had previously split that switch. He did not testify as to what effect the splitting of the switch in this case had on the plaintiff, but the conductor, a witness for defendant, testified:

"There was one passenger, a lady. She was standing up right by her seat, and when the car struck this switch she went down in her seat, sat down in her seat quick like, as if she lost her balance. She was three or four seats from the back. I don't know whether the jar of the car set her down or what. She didn't seem to sit down hard. It didn't affect me, nor throw me off my feet."

There was no evidence tending to show what caused such switch-splitting in this case. It does not appear whether the switch was defective, or imperfectly thrown, or whether the splitting was by reason of some unknown cause.

Plaintiff testified that she was thrown over, sitting down between two seats; that she did not know how many seats she struck; that it caused her side and back to hurt; made her nervous; that her ribs and kidneys were injured, and her side and arm were bruised. She testified that since that time she had suffered greatly from her back and kidneys; that she had difficulty in retaining her urine; that dropsical swelling had since then developed in her limbs; that she had pains under the ribs, and was confined to her bed thereafter for 10 days.

Dr. Barto, plaintiff's physician, testified that she was brought to his office at the time of the injury; that she had pain in the side, and that he thought that she had a broken rib, though he got no crepitation; that she had a nervous chill and was shaking; that at one time he thought she had a dislocated kidney; that she had been examined by two other doctors since, who did not think that there was a dislocation. Witness testified that he still thought there was some injury in the region of the right kidney; that he could not say positively whether there was a dislocated kidney. The following then occurred in the course of his examination:

"Q. Now, doctor, did you observe in your treatment of her any swelling of the limbs? A. Yes, sir. Q. What, in your opinion, brought that about? A. I cannot say positively just what brought that on. I examined her urine. I never found any albumen in it; I never found any sugar. Of course, I couldn't say positively what did cause the swelling. Q. Has that any connection with the injury to the kidney, in your opinion? (Objected to as invading the province of the jury. The court sustained the objection, to which ruling plaintiff by counsel then and there duly excepted.)

"The Court: There is no showing here that the kidney has been dislocated, as yet.

"Mr. Rogers: Do you say you could not tell whether or not she was suffering from injuries to her kidney? A. No. Q. Were there any symptoms that you observed in your treatment of her? A. There was a tenderness in that region, of course, in the region of the kidney. That could have been caused also by injury to the ribs, as well as to the kidney. I examined her side several times; I had no other knowledge of any injuries other than from an examination of her as to any injury to the kidney. The only thing there was blood in the urine. She told me there was blood in the urine. I never examined microscopically, to tell. Q. Would that indicate any injury to the kidney? (Objected to. Objection sustained.) Q. That you know only from what Mrs. Craig told you? A. Positively, yes. Of course, the urine was cloudy and all that, but I didn't make any microscopic examination. Q. You saw some of it? A. I saw the urine; yes, sir. Q. What does blood in urine indicate, doctor? (Objected to. Objection sustained.)

"Cross-Examination by Mr. Priest.

"I thought she had a fractured rib, and that is the reason I put the adhesive plaster on. I did not take an X-ray. I was positive that she had an injury to her rib. There was a bruise on the side, you know. I could tell there was an injury there, in the region of the floating rib. There was a slight discoloration of the skin; I don't know just how big. There was a discoloration, showing a...