Gaty v. United Rys. Co.

• Decision Date: 28 April 1923
• Docket Number: No. 23841.,23841.
• Citation: 251 S.W. 61
• Parties: GATY v. UNITED RYS. CO.
• Court: Missouri Supreme Court

251 S.W. 61

GATY v. UNITED RYS. CO.

No. 23841.

Supreme Court of Missouri, In Banc.

April 28, 1923.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Florence L. Gaty against the United Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and Albert D. Nortoni, all of St. Louis, for appellant.

D. Franklin Garber and Claud D. Hall, both of St. Louis, for respondent.

WALKER, J.

This is a suit for damages on account of personal injuries due to the alleged negligence of the defendant. There was a former trial resulting in a verdict for the plaintiff in the sum of $12,000. A motion for a new trial was sustained on the ground of newly discovered evidence from which order the plaintiff appealed, and this court, (286 Mo. 503, 227 S. W. 1041), affirmed the ruling of the circuit court, resulting In a remanding of the case. On a second trial to a jury the plaintiff was awarded a verdict of $15,850. The circuit court as a condition to the entry of the judgment required a remittitur of $4,000, and upon a compliance therewith a judgment was entered for $11,850.

Plaintiff was a single woman about 35 years of age, employed as a stenographer at the St. Louis post office. On December 16, 1916, at about 6:30 o'clock p. m., she boarded a street car on defendant's line at Fourth street in the city of St. Louis, and while a passenger thereon received the injuries complained of. The car on which she was riding was a "pay as you enter car," and passengers boarded it at the rear end. Near the entrance was a space inclosed by an iron railing within which the conductor stood to receive fares. She paid her fare, and while standing in the vestibule holding to the iron railing to steady herself, not having had time to reach a seat, the car in which she was riding, as it turned south on Eighteenth street, was struck by another car of the defendant. The impact partially demolished the vestibule of the car in which she was riding and it was derailed. The plaintiff was knocked down by the collision, rendered unconscious for a short space of time thereafter, and when she was helped up was in a dazed condition. When assisted out of the wreck she walked 30 or 40 steps to another car line of the defendant, on which she rode en route to her home until transferred to another car which conveyed her nearer to her destination. After a short ride on the last car, she alighted therefrom and walked about four blocks to her place of abode. The allegations of the petition descriptive of the collision are as follows:

"That as a direct result of said collision the car in which plaintiff was at the time riding was thrown from its track, and plaintiff by reason thereof was violently thrown and knocked down and about in said car, and was rendered unconscious thereby, her nerves and nervous system were greatly shocked and injured, her head and face were cut and lacerated, her right leg and knee joint, and the bones, muscles and ligaments thereof, were greatly strained, bruised, torn, and injured, so as to produce a tuberculous and enlarged condition of her said knee, and her said knee and joint thereof was made, and is, stiff and immobile and is permanently injured; that as a direct result of said injuries, caused and occasioned by the negligence of defendant, its agents and servants as aforesaid, plaintiff states that she has suffered great bodily pain; that she was made and is very restless, nervous, and suffers from loss of sleep, and will in the future suffer from nervousness; as a direct result of said injuries she has been disabled from carrying on her duties, that of clerk in the United States post office in said city of St. Louis, and her earnings, amounting to $75 per month, have been lost to her, and she will in the future be deprived of and suffer a loss of earnings by reason of slid' disability and injuries so negligently inflicted upon her in the manner and by the means aforesaid; that as a direct result of said injuries she has necessarily incurred expense for nursing, medicine, medical and surgical treatment amounting to $125 or more, and will in the future be required to incur further like expense. And plaintiff states, and avers the fact to be, that she has been actually damaged as a direct result of all the injuries aforesaid, caused and occasioned by the negligence of defendant, its agents and servants as aforesaid, in the sum of $25,000."

The answer was a general denial.

Other than and in addition to the facts set forth in the foregoing statement, it was shown that the plaintiff in walking the short distance from the last car to her home, immediately after the accident, suffered pain in her right knee, difficulty in walking, and upon her arrival at home she cried; whether from nervousness incident to the shock or physical pain is not shown. The defendant concedes that the subject of controversy in the trial court was the nature and extent of plaintiff's injuries resulting from the collision. She claimed a serious and permanent injury to her right knee. Defendant insisted that this condition was due to other causes than the accident.

Prior to the injury her general health was good and had been all of her life. She had never theretofore suffered from nervousness, nor had her right leg or knee ever caused her pain or annoyance. Shortly after she reached home, a Dr. Russler, of the defendant's medical staff, called upon her. He says he made a regular examination of her condition and found no evidence of injury to her knee, except that she complained of pain therein. On the following morning, a Dr. Upshaw was called. He examined her for injuries, and especially her right knee, of which she complained, and found no external evidence there of injuries or of other injury, except one or two small abrasions on her forehead, but that she was extremely nervous and insistently complained of pain in her right leg and knee. He treated her for nervousness and prescribed a liniment for the joint. He continued to treat her for three or four weeks, making local applications of various kinds to the limb and knee, but found no visible evidence of injury thereto. Her pain and nervousness, however, remained unabated, and she began to limp. During this time, under his advice, she continued to work in the St. Louis post office, remaining at home for a day or two at a time. On January 29th, following, she put herself under the care of another Dr. Upshaw. He says he found her limb slightly swollen at the knee with retarded motion, and she gave evidence of extreme pain upon pressure or attempted motion. He sought to mobilize the knee by putting it in a cast and confining plaintiff to her bed, which he did for a period of four weeks. About March 1st, the cast was taken off, but the knee continued to be swollen, and on his advice hot pads were applied and the limb or joint was rubbed with local applications. When moving about it was necessary for her to use crutches. The treatment failed to produce any substantial results. About the 1st of June, Dr. Upshaw caused her to take treatment from a Dr. Josephine De France, an osteopathic physician. Dr. Upshaw gave it as his opinion that some other condition produced the swelling of plaintiff's knee than traumatism; that if there had not been some other condition, the swelling would have disappeared when the knee had been put into a cast. Dr. De France said that she found the knee joint stiff and that the plaintiff suffered considerable pain on pressure. The knee and the muscles of the leg were subjected to gentle manipulations about three times a week under Dr. De France until she went away on her vacation. Her diagnosis was that the condition was due to an injury. Subsequently, under the direction of Dr. Upshaw, plaintiff was put under the treatment of a Dr. Lofgreen, another osteopath. It is sought by defendant's evidence to show that this manner of treatment irritated rather than relieved the trouble. These treatments were then discontinued. Dr. Horwitz, an orthopedic surgeon or bone specialist, was then consulted. He commenced treating her in October, 1917, and on his first treatment he found plaintiff's knee joint swollen and rigid and the motion retarded, to about one-third of the normal range. There was tenderness around the joint and she complained of its paining her. She could not bear her weight on the limb nor use it in walking. A year or so thereafter, plaintiff was in an automobile collision, but whatever injury she received therein, if any, was slight. Dr. Horwitz diagnosed the trouble as tuberculosis, due to an injury to the knee joint. He stated further that the condition of plaintiff's nervous system might reasonably be attributed to the injury to her knee.

Dr. Horwitz testified in regard thereto as follows:

"On my last examination, a few days ago, the swelling of the joint and disability is greater than that found about a year or so ago. She was gone from the city about a year. The joint is now larger, the swelling is considerably greater, and the motion of the knee joint is less, and judging from that, with the extent of time that has passed and as shown by the X-ray, there are definite findings in the bone, I would say that her condition rather tends to be worse than improved. I consider the condition permanent."

Dr. Horwitz further testified that gentle manipulations of the knee joint would not prove detrimental.

Plaintiff continues to use crutches and has not been able to follow her calling or earn a salary since the accident. By defendant's medical testimony it was sought to show that the condition of plaintiff's knee was not attributable to the injury received in the collision, but to disease and the manipulation of osteopathic treatments and to an unusual immobilizing of the joint by putting it in a cast and keeping it thus incased for a long period of time; also, that the injury is not permanent, but...