Hebenstreit v. Atchison, T. & S. F. Ry. Co.
| Decision Date | 23 February 1959 |
| Docket Number | No. 6420,6420 |
| Citation | 1959 NMSC 19,336 P.2d 1057,65 N.M. 301 |
| Court | New Mexico Supreme Court |
| Parties | Mary J. HEBENSTREIT and John F. Hebenstreit, Plaintiffs-Appellees, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, a corporation, and P. C. Caldarelli, Defendants-Appellants. |
B. G. Johnson, W. F. Kitts, Albuquerque, for appellants.
William J. Bingham, Eugene E. Klecan, Albuquerque, for appellees.
The plaintiffs filed their complaint against the defendant seeking damages resulting from injuries received by Mrs. Hebenstreit in the wreck of the Santa Fe Chief near Springer, New Mexico, in the early morning hours of September 5, 1956. Both plaintiffs had been fare-paying passengers on that train.
The two counts of the first cause of action pertaining to Mary J. Hebenstreit, alleged, in substance:
1. That she received certain injuries in the wreck itself;
2. That the wreck either caused a cancer in her, or aggravated an existing condition of cancer; or
3. Activated a dormant condition or cancer; or
4. Contributed to the growth or spread of a cancerous condition;
5. That she suffered great pain and mental anguish, for which she sought damages in the sum of $105,000.
The second cause of action pertaining to plaintiff John F. Hebenstreit, alleged that as the husband of Mary J. Hebenstreit, he had incurred medical, drug, hospital and surgical expenses for her treatment, and had been forced to hire the services of others to care for the house and children of the plaintiffs, and had lost the consortium and services of his wife, plaintiff Mary J. Hebenstreit, for which he asked $75,000 as damages, but this was later reduced to $35,000 and count 2 of the complaint was stricken.
The defendant answered denying the allegations of the complaint, but later at a pre-trial conference admitted the wreck was caused by its negligence.
Mary J. Hebenstreit died prior to the trial and John J. Hebenstreit as administrator of her estate was substituted as plaintiff on her claims.
Jury verdicts were returned giving damages of $35,000 on the first cause of action, and for $25,000 on the second cause of action. This appeal followed.
As above stated, the defendant admits the wreck was caused by its negligence and that it is liable for all damages which the evidence reasonably establishes as a result of the injuries sustained by Mrs. Hebenstriet.
The contested issue in the case at the trial was whether the evidence reasoanbly established that a blow or blows sustained by Mrs. Hebenstriet aggravated or accelerated her admitted cancerous condition at the time of the wreck.
The trial court gave the following instruction on aggravation or acceleration of the cancerous condition:
'You are instructed that there can be no recovery for the effects of any condition of cancer or carcinoma contracted before the accident by Mary J. Hebenstreit unless the jury is satisfied from the evidence that such disease was aggravated by the negligent act of the defendants, and recovery could be had only to the extent attributable to the aggravation or acceleration.'
The correctness of this instruction is not questioned, so the question for our determination is whether there is sufficient evidence from which the jury could reasonably measure the extent of the aggravation or acceleration of the cancerous condition caused by the trauma Mrs. Hebenstriet suffered as a result of the wreck. In this connection we state there is sufficient substantial evidence given by Dr. Tanney that an injury such as Mrs. Habenstreit suffered when thrown around in the seat in which she was riding would and did aggravate her cancerous condition. However, Dr. Tanney who performed two operations on Mrs. Hebenstriet for cancer and was not only the Hebenstriet family physician but also treated her from shortly after the wreck until her death, further testified that the extent of such aggravation would be a matter of pure speculation. There was no other testifmony that the injury received aggravated or accelerated the cancerous condition.
Mrs. Hebenstriet, with no previous history of carincoma or other serious illness, was operated on for cancer of the ovaries on April 28, 1955, by Dr. A. J. Tanney. This operation disclosed that the ovaries had adhered to the surrounding tissues and to the bladder. A diagnosis of adenocarcinoma of the ovaries was made and a panhysterectomy was performed removing both the ovaries and tubes. All of the observable cancer was removed at that time and there then appeared to be no evidence of carcinoma other than in the ovaries, although there was no way of telling whether it had in fact all been removed surgically.
Mrs. Hebenstreit seemed to make a satisfactory recovery from the operation but shortly before March 8, 1956, Dr. Tanney noticed a mass in her abdomen. He operated on her for this condition on March 8, 1956, and discovered that the cancer had spread to the omentum, which is the lining, or covering, of the intestines and is above the female organs. The omentum was then removed, which left the intestines without covering. All of the observable cancer, or, as the doctor stated, all of the cancer he could see 'grossly,' meaning without the aid of a microscope as would be used by a pathologist, was removed. Dr. Tanney again could not be sure that all of the cancer had been removed.
At the time of the March 8, 1956, operation, a pathologist made a diagnosis of metastic anaplastic adenocarcinoma, meaning a cancer or carcinoma which has spread from or broken away from the original cancer cell and which consists of deranged calls which are rapidly growing.
Following recovery from the second operation Mrs. Hebenstreit resumed her normal household duties, doing the house work, cooking, washing, ironing, the buying of the groceries and looking after her children. In September of 1956, prior to the wreck, Dr. Tanney had seen her for a general checkup and did not feel any mass in her abdomen or detect any discomfort.
As above indicated, in September the plaintiff sustained injuries to her side and arm when the Santa Fe Chief, on which she and her family were returning to Albuquerque, collided with another train. The initial jolt of the collision twisted the seat loose and...
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