Franklin v. Kansas City Public Service Co.

• Court: Kansas Court of Appeals
• Writing for the Court: SPERRY
• Citation: Franklin v. Kansas City Public Service Co., 239 Mo.App. 151, 186 S.W.2d 546 (Kan. App. 1945)
• Decision Date: 05 March 1945
• Parties: Claude D. Franklin, v. Kansas City Public Service Company

186 S.W.2d 546

239 Mo.App. 151

Claude D. Franklin, v. Kansas City Public Service Company

Court of Appeals of Missouri, Kansas City

March 5, 1945

Appeal from the Circuit Court of Jackson County; Hon. John R. James Judge.

Reversed and remanded (with directions).

Charles L. Carr, Watson, Ess, Groner, Barnett & Whittaker, Carl E Enggas and Douglas Stripp for appellant.

(1) The trial court erred in refusing defendant's requested instructions D and E, which were withdrawal instructions with respect to plaintiff's "stroke" because plaintiff had the burden of proving that the collision caused the "stroke," he offered no substantial evidence in support thereof and defendant was therefore entitled to at least one of such instructions. Berry v. Kansas City Public Service Co., 341 Mo. 658, 108 S.W.2d 92; Hunt v. Armour & Company, 345 Mo. 677, 136 S.W.2d 312. (2) The verdict is grossly excesive. Heckert v. St. Louis Hockey Club (Mo. App.), 45 S.W.2d 869; Ulmer v Farnham (Mo. App.), 28 S.W.2d 113; Adams v. Street Railway, 174 Mo.App. 5, 160 S.W. 38; Gabriel v. Street Railway, 164 Mo.App. 56, 148 S.W. 168; Feddeck v. Car Company, 125 Mo.App. 24, 102 S.W. 675.

Louis N. Goessy, J. W. Kachelhofer for respondent.

(1) The trial court cannot be convicted of error for refusing to give defendant's requested withdrawal instructions, D and E, for the record in this case shows substantial evidence connecting plaintiff's stroke in November, 1942, with his brain injury caused by defendant's street car in February, 1942. Kimmie v. Terminal R. R. Ass'n. of St. Louis, 66 S.W.2d 561; Perringer v. Lynn Foods Co., 148 S.W.2d l. c. 611; Wills v. Berberich's Delivery Co., 134 S.W.2d 125. (2) The verdict of the jury in this case is anything but excessive. Webb v. Missouri, Kansas & Texas R. R. Co., 116 S.W.2d 28; Crews v. Kansas City Public Service Co., 111 S.W.2d 54.

Sperry, C. Boyer, C., concurs.

OPINION

SPERRY

This is a suit for damages based on personal injuries received by Claude D. Franklin, plaintiff, when the truck in which he was seated was struck by a street car owned and operated by Kansas City Public Service Company, defendant. Trial to a jury resulted in a verdict and judgment in favor of plaintiff in the amount of $ 7500. Defendant appeals.

The sufficiency of the evidence to make a submissible case is not challenged. Therefore we will state only such facts of record as are necessary to an understanding and disposition of the questions presented by the appeal.

Plaintiff was about 64 years old at the time of the accident. He had been regularly employed, for about 25 years, as a bakery salesman, until about 1937 when a change of management resulted in his being released from such employment. Thereafter, he worked steadily for about one and one half years as a time checker, and at other tasks, for his union. Following this work, he had no full time employment but worked part time for the union, was occasionally employed as a baker's salesman, and worked at other odd jobs. About a week prior to the accident he was employed by Crowe Bakery as a driver and salesman.

The collision occurred about 6 o'clock A. M., February 2, 1942, between 37th and 39th Streets on South Main, in Kansas City; when a truck, operated by plaintiff and in which he was seated, became stalled on defendant's street car tracks and was struck by defendant's street car. As a result of the collision plaintiff was rendered unconscious and remained in that condition for a period of about 24 to 48 hours. He was removed from the truck to St. Mary's Hospital where he remained until February 11, 1942. He suffered a concussion of the brain and a bruised spot, about the size of a dollar, on his left temple. The hospital records tended to prove that he suffered concussion of the brain, complained of pain in back and neck, had bruises over left temple, possible injury to neck, complained of soreness in chest and scapular region, very weak and shaky, and complained of distress in occipital region.

Dr. Bourke, who treated him on behalf of the employer, testified to the effect that a concussion of the brain means that plaintiff's brain was injured, how great or little he did not know; that he treated him for a period of several weeks after the accident; and that, five weeks after the accident, plaintiff still complained of pain in the back of his neck and shoulders. He released plaintiff for work five weeks after the accident. He found no symptoms of a stroke of apoplexy.

Plaintiff's testimony, regarding his condition as a result of collision, and thereafter, was to the effect that after he went home from the hospital he stayed around in the house for several days; that he attended police court about the middle of March; that for about two or three months after the accident he suffered from weakness in the legs and pain in his head; that this condition cleared up after about two or three months, and thereafter he felt fine, was in good health and felt fine all summer, until in November, 1942; that he drove his car two or three days a week from about two months after his return from hospital, until November 29, 1942; that he drove the car on a three day trip in September, 1942; that he worked in September for the Wonder Bread Company and was in good physical condition at that time; that he worked for the three weeks immediately prior to November 29, 1942, putting up storm windows, and that he had no aches or pains at that time; that about two weeks prior to November 29, 1942, his lips began to twitch, his speech thickened, and he became nervous and unsteady as to hands and legs; and that he suffered a paralytic stroke on November 29, 1942, from which he became helpless for a time and from which, at the time of trial, he was still unable to use his right leg and arm and was wholly incapacitated for labor.

Plaintiff also testified that on October 12, 1941, he fell some ten or twelve feet from a building, alighting on his chest and face. He broke three ribs. There was evidence to the effect that his nose bled from the fall. He was in hospital four days because of injuries so received. There was also evidence to the effect that two years prior to the collision he suffered from high blood pressure and had received treatment therefor.

Plaintiff offered the testimony of Dr. Lee, who attended him after he suffered the stroke. Dr. Lee stated that it was his opinion, as a physician, based upon his examination, observation and treatment of plaintiff, that the stroke was either due to a blocking of the arteries leading to a portion of the brain, or to a hemorrhage under the brain covering producing pressure on the brain. He found no symptoms of a cerebral hemorrhage and did not think that plaintiff had suffered such a hemorrhage.

In answer to a hypothetical question, Dr. Lee stated that it was possible for one to have a head injury (such as might have resulted from the collision) causing blood under the brain covering, and continue one's duties for as long as a year and then have a stroke therefrom and become paralyzed and incapacitated. He also stated that a stroke might be similarly caused by an injury received four or five years prior thereto; that such an injury could as likely be caused from a fall of twelve feet as from a collision; that bleeding from the nose, caused by a fall, is...