Herndon v. City of Springfield

• Decision Date: 11 May 1909
• Citation: 137 Mo. App. 513,119 S.W. 467
• Parties: HERNDON v. CITY OF SPRINGFIELD.
• Court: Missouri Court of Appeals

119 S.W. 467

137 Mo. App. 513

HERNDON v. CITY OF SPRINGFIELD.

St. Louis Court of Appeals. Missouri.

May 11, 1909.

1. NEGLIGENCE (§ 122)—EVIDENCE—INSTRUCTIONS.

Where, in an action for personal injuries, there was evidence that plaintiff had never been in robust health, that she had had rheumatism which might have produced the condition complained of, and physicians testified that tuberculosis or some other latent disease might have brought about the condition, and that, if plaintiff had had such a latent impairment of health, the accident might have led to such a condition —an instruction that, though plaintiff had tuberculosis or rheumatism or a latent disease, yet, if she was injured by the negligence of defendant, the latter was responsible for the effects naturally and necessarily following the injury, etc., was warranted by the evidence.

2. NEGLIGENCE (§ 78)—PERSONAL INJURIES— PREDISPOSING CAUSE OF INJURY.

The fact that a pedestrian who fell into a hole in a sidewalk had a pernicious and latent taint in her system which the fall aggravated, thereby setting up a process of disease, developing into the condition complained of, did not relieve the city from liability, provided the fall was due to its fault.

3. DAMAGES (§ 148)—PERSONAL INJURIES— PETITION.

The petition in a case for personal injuries which alleges that plaintiff had paid, and obligated herself to pay, and would be compelled to pay, for medical services, authorizes the jury to allow plaintiff the reasonable value of medical aid which had been, and which might thereafter be, rendered to her on account of her injuries.

4. PHYSICIANS AND SURGEONS (§ 21)—RENDITION OF SERVICES—OBLIGATION TO PAY.

The law implies an obligation to pay the reasonable value of medical services because of the rendition of such services.

5. APPEAL AND ERROR (§ 1068)—HARMLESS ERROR—ERRONEOUS INSTRUCTIONS.

Where, in an action for personal injuries, the petition demanded damages for expenses for medical services, and the evidence showed the rendition of medical services, but did not show payment therefor nor an express contract to pay, nor the reasonable value of the services, and the amount of the verdict was justified by the evidence, the error in allowing plaintiff the reasonable value of medical aid was not reversible.

6. APPEAL AND ERROR (§ 1004)—QUESTIONS REVIEWABLE.

Where a woman between 25 and 30 years was injured and rendered a helpless cripple for life, a verdict for $5,825 was not so excessive as to show passion or prejudice of the jury; and the action of the trial court in reducing the verdict to $3,000 would not be disturbed on defendant's appeal.

7. APPEAL AND ERROR (§ 1046)—HARMLESS ERROR—MISCONDUCT OF JUDGE—EFFECT.

The remarks of the court during the progress of the trial, at which both parties called expert witnesses, made in response to an objection to a question on the cross-examination of an expert witness of the defeated party that the court was not strong on expert testimony, and did not believe in broadening its scope, but would permit the question, were not reversible error where the court in its instructions stated that the jury were the sole judges of the credibility of the witnesses.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by Marie Herndon against the City of Springfield. From a judgment for plaintiff, defendant appeals. Affirmed.

A. P. Tatlow, Barbour & McDavid, and Jas. H. Mason, for appellant. G. W. Goad and A. H. Wear, for respondent.

REYNOLDS, P. J.

A motion for rehearing having been filed and sustained, we have again considered it, aided by elaborate and earnest argument, oral and printed, by able counsel. On careful consideration we see no reason to reach a different conclusion than that arrived at when the case was first heard and determined. The writer avails himself in the main of the statement and the greater part of the opinion heretofore handed down by Judge Goode.¹

In the early morning of April 17, 1906, the plaintiff stepped into a hole in the sidewalk while walking along one of the main thoroughfares of the city of Springfield. She immediately returned to her home, which was not far away, and bathed her injured foot and limb with liniment. About 9 o'clock that morning she walked five or six blocks to a store where she was employed to notify the proprietor that she would not work for him longer, having obtained employment to begin the following Monday elsewhere. Though plaintiff intended to cease the employment she was in, she testified she would have worked through the day of the accident if she had not been hurt. She returned from the store to her home about 11:30 o'clock in the morning, and, according to testimony in her behalf, took to her bed solely on account of the injury to her knee, and she was confined to her bed between 7 and 8 months, though occasionally she would go about the house on crutches. The knee became anchylosed—that is, stiff—and beyond all human doubt will remain so the rest of her life; anchylosis being the stiffness or fixation of a joint, the formation of a stiff joint, the joint becoming bony and stiff, so that, in this case, the knee bones were united and the joint became inflexible. The present action was instituted to recover damages from the city; the petition counting on negligence in leaving uncovered the hole in the walk into which plaintiff stepped. This hole was a water pipe six inches in diameter, which, starting within an inch or two of the surface of the sidewalk, was carried down and connected with a subterranean drain. The brick sidewalk was somewhat depressed around the opening, and there can be no doubt the opening endangered any one walking along there who was unaware of its existence. The answer is a general denial and a plea of contributory negligence on the part of plaintiff, in that it is charged she was walking in a careless and indifferent manner, stepping along without paying any attention to where she was to put her feet, and failing to use her eyes to observe, and thereby avoid, the hole. The evidence proved conclusively the hole was in the walk, and tended to prove the city had both actual and constructive notice of the fact. It also tended to prove the fall of plaintiff as alleged and her consequent injury. These facts being in evidence, we find no reason to hold that the defendant's request for a direction for a verdict in its favor should have been given. The defendant's counsel are too able lawyers seriously to press this as error. The main contest at the trial was around the issue of whether the anchylosed condition of plaintiff's right knee was caused by the fall, and on this question there was a conflict in both the direct and the expert testimony. Plaintiff herself, and many witnesses in her behalf, testified she was a young woman about 25 years old in apparently good health and without a halt or limp in her walk prior to the date of the accident, although her mother said she had never been strong. She is now a cripple, her kneejoint inflexible. Such was the testimony of the members of her family and several acquaintances. On the contrary, witnesses who were about the store where she had worked a week or two before the accident testified she limped while there and complained of rheumatism. She swore she never had experienced a touch of rheumatism in her life. Some witnesses who visited her while she was bedridden testified to deriving the impression from what she said that she was suffering from rheumatism. In the record is the opinion testimony of physicians on both sides, as well as some positive testimony by the physician who attended her, as to the probable cause of the stiff knee. The purport of the opinion evidence for plaintiff was that the fall might have so injured the knee as to induce anchylosis, and yet not have been so painful or disabling at the time as to prevent her from going about as much as she said she did on the day of the injury; whereas, the testimony of the physicians who were called as experts by the city was that a fracture or other injury to the knee as the result of a fall severe enough to have resulted finally in anchylosis must have rendered her unable to walk home, or, at least, to walk five or six blocks to the store where she was employed. A good deal of expert testimony was adduced by defendant in support of the hypothesis that rheumatism, tuberculosis, or other septic condition may settle in the kneejoint and bring about anchylosis; while for the plaintiff this testimony was met by testimony to the effect that, if a person's system was affected by such a malady, the fall plaintiff alleges she met with would start into activity or even exacerbate the tubercular or rheumatic condition of the system, and thereby ultimately bring on anchylosis. The jury returned a verdict in plaintiff's favor for $5,825, but, a motion for a new trial having been filed, the court compelled plaintiff to remit $2,825 under pain of having the motion sustained. Plaintiff remitted accordingly, and the court entered up judgment in her favor for $3,000, from which defendant appealed, having duly excepted. It is as well to say here that on a former trial plaintiff had a verdict for $4,000, which was set aside and a second trial granted on the ground of alleged newly discovered evidence.

The case was submitted to the jury on proper instructions, and every request preferred by defendant, of which there were...