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

• Decision Date: 05 March 1921
• Docket Number: No. 21127.,21127.
• Citation: 286 Mo. 503,227 S.W. 1041
• Parties: GATY v. UNITED RYS. CO OF ST. LOUIS.
• Court: Missouri Supreme Court

227 S.W. 1041

286 Mo. 503

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

No. 21127.

Supreme Court of Missouri, in Banc.

March 5, 1921.

Appeal from St. Louis Circuit Court; Thos. C. Hennings, Judge.

Action by Florence L. Gaty against the United Railways Company of St. Louis. From order granting new trial after verdict for plaintiff, plaintiff appeals. Order affirmed.

This is an action for damages for personal injuries alleged to have been received by plaintiff in a collision between two of defendant's street cars, in one of which she was a passenger.

On December 19, 1916, the defendant was engaged in operating various lines of street railway in the city of St. Louis. On that date plaintiff boarded and became a passenger on one of defendant's cars, it being of the type known as a "pay-as-you-enter" car, receiving passengers at the rear end. Near the entrance there was a small space, inclosed with an iron railing, in which the conductor stood to receive fares. After plaintiff had paid her fare and while standing in the vestibule, holding to the iron rail inclosing the conductor's booth, not having had time to reach a seat, the car in which she was riding was run into by another of defendant's cars. The vestibule was partially demolished and the car itself derailed. Plaintiff was knocked, or thrown, down by the impact and was unconscious for a minute or so. When she got up, or was helped up, she was in a dazed condition. She got out of the car and walked about 30 or 40 steps. She then took another car and rode a distance, en route home, transferred to another line on which she rode a short distance, and then got off and walked four blocks to where she lived. So far the facts seem to be conceded. The nature and extent of plaintiff's injury, if any, resulting from the collision, were the subject of the controversy at the trial below.

The petition alleges that, as a direct result of the collision, plaintiff —

"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 was cut and lacerated, her right leg and knee and kneejoint and the bones, muscles, and ligaments thereof were greatly strained, bruised, torn, and injured 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 and mental anguish, and will in the future suffer such 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; that 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 at 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 such disability and injuries so negligently inflicted upon her in the manner and by the means aforesaid."

The answer is a general denial.

With respect to her alleged injury and the resulting impairment of her earning capacity, plaintiff's evidence, which is of a substantial character, tends to show the following:

At the time of the collision in which she claims that she was injured, plaintiff was 35 years of age, unmarried, living with her mother, brother, and sister, and being in the employ of the United States as clerk and stenographer in the post office at St. Louis at a salary of $800 a year. Prior to that time her general health was good, and had been all her life. She lied not theretofore suffered from nervousness in any respect, nor had her right leg or knee ever pained her or caused her the slightest annoyance in any way.

As an immediate result of the collision, plaintiff received two slight cuts or abrasions on the left side of her head, suffered nervous shock, and experienced severe pain in her right leg and knee. The pain in her limb was so great that she had difficulty in getting home. On arriving there she gave way to a spell of hysterical crying before she could tell her mother what had happened. The next morning Dr. O. T. Upshaw was called. He found no external evidences of injury of any kind, except an abrasion on her head, but she was extremely nervous, and complained of pain in her leg and knee. He treated her for the nervousness, and prescribed a liniment for her limb. He continued to treat her for three or four weeks, making local applications of various kinds to the leg and knee and having plaintiff wear an elastic stocking and knee protector. Her pain and nervousness, however, remained unabated, and she began to limp. During this time, under his advice, she continued at work, having to remain at home for a day or two from time to time. On January 29th following, plaintiff put herself under the professional care of Dr. Harry Upshaw, her mother's family physician. He found her limb at that time slightly swollen at the knee, that there was retarded motion and extreme pain upon pressure, or upon forced motion. He thought best to immobilize the knee by putting it in a cast and confining plaintiff to her bed, and this he did for a period of four weeks. About March 1st the cast was taken off, but the knee continued swollen, and on the advice of Dr. Upshaw plaintiff put hot pads to the leg and rubbed it with alcohol. When moving about she used crutches. This treatment gave no results, and about the 1st of June Dr. Upshaw turned her over to an osteopathic physician. During the time that Dr. Harry Upshaw was treating plaintiff, she was extremely excitable, trembling whenever he attempted to do anything to her knee, and her nervous condition became so extreme as to verge on hysteria. On cross-examination Dr. Upshaw said that there must have been some other condition which produced the swelling of plaintiff's knee than traumatism, otherwise the swelling would have disappeared when the knee had been put into a cast.

Dr. Josephine De France, the osteopath to whom the case was referred, found the kneejoint stiff, the cartilage seeming to be locked between the two large bones of the leg. It was subjected to osteopathic treatment from June until the latter part of September without results. These treatments were then discontinued. Plaintiff next consulted Dr. A. E. Horwitz, a specialist in bone surgery. He began treating her on October 10, 1917, and at the time of the trial in January, 1918, she was still under his care. On his first treatment, Dr. Horwitz found plaintiff's kneejoint somewhat swollen and rigid, and the motion only about one-third of what it would have been had it been normal. There was tenderness around it, and she complained of its paining her. At the time of the trial these conditions had not yielded to his treatment. Plaintiff could bear her weight on her limb, but could not use it in walking. On the witness stand, Dr. Horwitz was asked whether in his opinion plaintiff would ever be able to have "the full and complete and normal use of her limb and knee." He answered, "I doubt it." On being asked what he treated the knee for, he answered, "My diagnosis was tuberculosis of the kneejoint." Defendant objected that that was a matter of special damages, and was not pleaded. The question was withdrawn, the answer stricken out by the court, and the jury cautioned to disregard it. This witness further testified, without objection, that the rigidity of the joint which he found could have been caused by either an injury or disease. It could have been produced by injury followed by disease. He was then asked if the condition of the knee as he found it could have been brought about by an injury. His answer was:

"My interpretation of that would be that it was disease of the joint coming from an injury; that the disease was superinduced by the injury."

Defendant moved that the answer be stricken out on the ground that "it is just another way of bringing in something that is not pleaded." The motion was overruled. On cross-examination, the witness further testified that he found the knee in a diseased condition, and that such condition, if caused by an injury, would have developed within a month or two after the happening of the injury.

Plaintiff was unable to do any work after February 1, 1917. At the time of the trial she had incurred, for medical treatment, an expense of approximately $560.

Defendant's evidence may be briefly summarized as follows: Six radiographs were taken of plaintiff's knee; two on January 26th; two on June 12th; one on September 14th; and one on September 20th — all in the year 1917. None of them, according to the experts who testified on the subject, showed any injury to, or dislocation or fracture of, either the bones or ligaments of the joint. They disclosed nothing whatever that was abnormal.

Plaintiff was examined on three different occasions by a surgeon in the employ of defendant, and at two different times by a physician appointed by the court. On the day of the accident, and within an hour or two thereafter, Dr. J. J. Russler, at the instance of defendant, called on plaintiff and made an examination. He found that she had an abrasion over the left eye, and that she complained of pain in the left temple and in her right leg. He found no objective symptoms of an injury to either her left temple or right leg. Dr. Carl J. Young, another of defendant's surgeons, made an examination of plaintiff on January 10, 1917. To him she complained of pain in her right knee. He discovered a slight tenderness over two of the muscles; otherwise there were no signs of injury. He found "nothing the matter with the bone, no limitation of motion, no dislocation, nothing wrong." On March 14, 1917, Dr. J. T. Turley, also...