Flynn v. Corich

• Decision Date: 08 November 1932
• Docket Number: No. 21825.,21825.
• Parties: FLYNN v. CORICH.
• Court: Missouri Court of Appeals

53 S.W.2d 1103

FLYNN v. CORICH.

No. 21825.

St. Louis Court of Appeals. Missouri.

November 8, 1932.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be published in State Reports."

Action by Margie Flynn, an infant, by Harry Flynn, her next friend, against Albert J. Corich. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Leahy, Saunders & Walther and William O'Herin, all of St. Louis, for appellant.

Mark D. Eagleton, Dan P. Reardon, and Frank P. Aschemeyer, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff on March 16, 1929, when she was struck by defendant's automobile at or near the intersection of Columbia avenue and Pearl street, in the city of St. Louis. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $4,500; and from the judgment rendered, defendant has duly appealed.

The sole point raised on this appeal is that the verdict is excessive, in view of which any reference to the pleading and proof of negligence in the case is immaterial. We shall accordingly confine our statement to one of the nature and extent of plaintiff's injuries, bearing in mind in so doing that it is our duty in passing upon the objection that the verdict is excessive to take into consideration the testimony most favorable to plaintiff, and to regard it as true, and to disregard whatever evidence may have been adduced to the contrary. Peterson v. Kansas City, 324 Mo. 454, 23 S.W.(2d) 1045; Porter v. Chicago, B. & Q. R. Co., 325 Mo. 381, 28 S.W.(2d) 1035; McMahon v. Kansas City Rys. Co. (Mo. App.) 233 S. W. 64; Linton v. St. Louis Lightning Rod Co. (Mo. App.) 285 S. W. 183; Stuckenmeyer v. Creane (Mo. App.) 291 S. W. 145; Wielms v. St. Louis County Gas Co. (Mo. App.) 37 S.W.(2d) 454; Stofer v. Kansas City Public Service Co. (Mo. App.) 41 S.W.(2d) 614.

Plaintiff is a small child, having been only six years of age at the time of the accident. She was struck by the left front fender or bumper of the automobile, and then whirled or thrown backwards towards the rear of the machine. The evidence shows that the automobile was running at a speed of 25 or 30 miles an hour some 200 feet before the point of the collision, and that "the car slowed down a little, but not much, as it traveled down that distance * * * until the accident occurred." As bearing upon the question of speed, and consequently upon the question of the force with which plaintiff was struck, another witness testified that the screeching of the brakes was what first attracted her attention to the impending casualty.

Plaintiff was picked up off of the street in a dazed condition, and was taken into her home, and then Dr. Frank L. Morse was called to treat the case. The principal injury was to her right arm, there being a comminuted fracture through the surgical neck or upper end of the humerus. In other words, the break was near the shoulder joint, possibly an inch or less below the shoulder. X-ray pictures were taken which showed the breaking of the bone into fragments, with angulation inward. The arm was kept in a splint for six weeks, and weight was applied to overcome the abnormal angulation. After the splint was removed, the function of the arm was found to be impaired, and massage and manipulation were resorted to for a further period of six weeks in an endeavor to restore normal function.

Dr. Patrick McGinnis testified that he examined plaintiff on May 5, and October 7, 1930; that he found a considerable drooping of the right shoulder, with deficient development as compared with the left shoulder; that the head of the humerus appeared larger in the right arm than in the left; that there was a considerable impairment of motion, especially in the matter of rotating the arm; that there was an excessive bony formation around the site of the fracture; that due to the evidence of adhesions resulting from the tearing down of the soft tissues, and to the loss of normal function, plaintiff in all reasonable certainty was likely to suffer pain, and to have trouble, in the future; that with reference to the impairment of motion, there was no difference to be noticed between the result of the...