Dorn v. St. Louis Public Service Co.

• Decision Date: 17 June 1952
• Docket Number: No. 28359,28359
• Parties: DORN v. ST. LOUIS PUBLIC SERVICE CO. et al.
• Court: Missouri Court of Appeals

Page 859

250 S.W.2d 859

DORN v. ST. LOUIS PUBLIC SERVICE CO. et al.

No. 28359.

St. Louis Court of Appeals, Missouri.

June 17, 1952.

Motion for Rehearing or to Transfer to Supreme Court Denied

Sept. 5, 1952.

Mattingly, Boas and Richards, Lloyd E. Boas, Edward F. O'Herin, St. Louis, for appellant.

Barnhart & Wood, C. V. Barnhart and Marvin S. Wood, St. Louis, for respondent.

ANDERSON, Judge.

Plaintiff, Columbus Dorn, brought this action against defendants, St. Louis Public Service Company, and Robert Triplett, doing business as St. Louis Cab Company, to recover damages for personal injuries claimed to have been sustained by him in a collision between a taxicab belonging to defendant Triplett, in which plaintiff was riding as a passenger, and a streetcar of defendant St. Louis Public Service Company. The trial below resulted in a verdict and judgment in favor of the plaintiff and against St. Louis Public Service Company in the sum of $8,000, and in favor of defendant Robert Triplett. Thereafter, plaintiff remitted the sum of $500 from the verdict and judgment, and a new judgment was entered in favor of plaintiff and against defendant St. Louis Public Service Company in the sum of $7,500, and in favor of defendant Triplett. From this judgment, the St. Louis Public Service Company has appealed.

On this appeal the appellant alleges error in the trial court's refusal to admit certain evidence, and in the giving of Instruction No. 6.

The accident occurred on June 24, 1950, on Easton Avenue, in the City of St. Louis, at a point about sixty feet west of Grand Boulevard. Plaintiff boarded the taxicab in the 100 block of North Jefferson Avenue. Three other passengers were in the cab. The cab was driven west on Easton Avenue and came to a stop at Grand Boulevard in obedience to a traffic signal. At that time appellant's westbound streetcar was stopped in the east side of Grand Boulevard discharging and taking on passengers. When the traffic signal changed to 'green' the taxicab proceeded west on Easton Avenue across Grand Boulevard and to a point about sixty feet west of Grand Boulevard, where it stopped. The driver of the cab, after crossing Grand Boulevard, signaled with his left arm for a left turn into Evans Avenue. The taxicab was in the westbound streetcar tracks at all times after crossing Grand Boulevard. A left turn into Evans Avenue could not be made immediately because of traffic moving eastward on the south side of Easton Avenue. The driver of the taxicab testified that after he had stopped his cab to make the left turn he saw the streetcar start from its position east of Grand Boulevard. Thereafter, the streetcar ran into the rear of the taxicab, knocking it forward several feet. The cab driver further testified that the head lights and tail lights on his cab were turned on and working properly at the time.

Gussie Brown, a passenger in the taxicab, testified that the taxi was standing still when it was struck, and had been stopped long enough for at least four or five eastbound cars to pass. Plaintiff testified that the cab had been stopped at least a minute and a half waiting for eastbound traffic to pass when it was struck by the streetcar.

Defendants' evidence tended to show that after the streetcar crossed Grand Boulevard, and was proceeding at the speed of ten or twelve miles per hour, the taxicab suddenly swerved onto the tracks, about ten feet in front of the streetcar, and made a sudden stop. The operator of the streetcar testified that when this happened he cut off the power and applied the brakes. He stated that the streetcar was moving five or six miles per hour when it struck the rear end of the taxicab, and moved about five or six feet after the collision. He further testified that traveling at ten miles per hour the streetcar could be stopped in fifteen feet; and at fifteen miles per hour the streetcar could be stopped in twenty feet.

Plaintiff was taken from the scene of the accident to the Homer G. Phillips Hospital. There he was examined and given some pills. No X-rays were taken. The next day plaintiff went to the Missouri-Pacific Hospital where X-rays were made which showed a fracture in his right shoulder. He returned to the Missouri-Pacific Hospital at intervals thereafter. On September 3, 1950, plaintiff returned to work. He was employed as a car washer for the Terminal Railroad Company. He worked only three days. He stated he could not continue to work because he could not use his arm. He again returned to work on September 28, 1950, at which time he was assigned lighter duties. He continued in this employment until February 5, 1951.

On June 27, 1950, three days after the accident, plaintiff consulted Dr. Vaughn C. Payne. The doctor testified that his examination of plaintiff on that date revealed pain and swelling in the right shoulder region and a contusion and swelling of the posterior scapula, also stiffness and pain in the muscles of the neck, the right arm, and right wrist joint. Dr. Payne on said occasion also took X-rays of plaintiff's right shoulder. These X-rays revealed a comminuted fracture of the acromion process of the scapula with considerable separation of the fragments. On August 26, 1950, Dr. Payne took another X-ray to determine whether there was any union taking place at the fracture site. This X-ray examination revealed that there was no new bone being formed; that the broken fragment was completely detached and had not grown back to the parent bone. Dr. Payne testified to the effects of such an injury, stating it impaired the ability of plaintiff to elevate his arm, and would cause ache and pain for the rest of his life.

Dr. Payne further testified that to relieve the strain on the fracture he put plaintiff's arm in a sling, and gave him heat treatments to heal the bone and relieve pain. This treatment was continued until plaintiff returned to work in September, 1950, and occasionally thereafter during the fall season. About February 3, 1951, plaintiff again consulted Dr. Payne, and has been in the doctor's care ever since. Treatment has consisted of applying heat. The doctor advised plaintiff to quit using his arm so that his injury would have a chance to heal. It was Dr. Payne's opinion that plaintiff was disabled from performing his duties as a car washer and would never be able to do that work again. He stated that an operation could not relieve plaintiff's condition, but would worsen it. On cross-examination the doctor stated that the pain which plaintiff suffered was due to the continued pull on these fragments which were joined merely by a fibrous union. The doctor further testified that the condition was not unusual in a fracture of the type plaintiff suffered because the blood supply in that part of the body is less than is normal for other parts of the body. He stated that in his opinion the broken process would never heal because there will not be enough new bone thrown out to bridge the gap.

Dr. William A. Stephens examined plaintiff a few days before the trial. The trial started on March 19, 1951. He testified that his examination of plaintiff's right shoulder revealed no atrophy of the soft tissues, but did reveal considerable tenderness over the upper part of the shoulder, and that the acromion processes were crepitatious. He stated that while plaintiff had normal movement of the right shoulder, there was considerable pain when his arm was raised above the shoulder level. He also stated that plaintiff complained that his arm was weak, and that there was possibly some weakness of the deltoid muscle.

Dr. Stephens took some X-rays on March 15, 1951. At the trial he interpreted an X-ray film as follows:

'This is an anterior-posterior X-ray made of Mr. Dorn's right shoulder, and it shows the entire scapula, shoulder blade. It shows a portion of the clavicle, which is the collarbone * * * and it shows the upper one-half of the humerus and also a portion of the chest wall. Now, the only significant finding on this X-ray is the presence of a fragment of loose bone * * * that measures about roughly half an inch in length and perhaps half an inch in diameter, which is lying approximately over the head of the humerus and represents to me an old fracture of the acromion process, which is this part here of the scapula, which is un-united * * * the fragment had failed to unite to the parent bone.'

The doctor further testified that one of the most important muscles, the deltoid muscle, which has the function of elevating the arm, is attached to the fragment of the bone that was torn away from the parent bone. He further testified that whenever the deltoid muscle is put in operation it has a pulling effect on the broken fragment of the bone and would cause pain. He further stated that he thought the likelihood of these bones being united was very remote; that the plaintiff's condition would be permanent; that the pain caused by this condition would continue for the rest of plaintiff's life, and might even grow worse.

On cross-examination, Dr. Stephens gave the following testimony:

'Q. Doctor, I understood you to say by your reference to a piece of loose bone up there that that was evidence of an old un-united fracture, is that correct? A. That is correct.

'Q. Are you able to say from what you can see yourself and your examination, Doctor, of that X-ray, without resort to what you were told, when that fracture may have occurred? A. No, I think that would be very difficult to put a definite date on the thing. * * * because now if this individual had this fracture, injury, recently, one would expect some swelling and limited motion and muscle spasm and those other things that we speak of which would indicate the fracture was more recent; but this is not a few months; it may be years, * * * all I could do was to take the patient's word for it. I know that this fracture is old because when a fracture is fresh the fragment is sharp, has sharp...