Hickey v. Omaha & Council Bluffs Street Ry. Company
| Decision Date | 12 December 1941 |
| Docket Number | 31229 |
| Citation | 1 N.W.2d 304,140 Neb. 665 |
| Parties | MARGARET HICKEY, APPELLEE, v. OMAHA & COUNCIL BLUFFS STREET RAILWAY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.
AFFIRMED.
Kennedy Holland, DeLacy & Svoboda, for appellant.
Paul P Massey and John C. Mullen, contra.
Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.
Plaintiff recovered a judgment in the sum of $ 12,000 against the defendant for personal injuries received in an accident. Defendant appeals and presents two propositions: First, the trial court erred in not submitting the question of defendant's negligence to the jury; second, the verdict was excessive and the result of passion and prejudice.
Plaintiff, an unmarried woman, was born in 1894. At the time of the accident and for many years prior thereto she was an employee of the Union Pacific Railroad in a clerical position. Her work required considerable use of her right hand in writing, typing, and the use of adding machines and other mechanical office equipment. Her salary at the time of the accident was $ 139.20 a month or $ 1,670.40 a year.
The accident occurred on the morning of February 10, 1939. The weather was clear; the temperature eight degrees below zero. About six inches of snow was on the ground, and the streets were slippery. This condition existed generally in the city of Omaha; evidence as to the specific condition at the scene of the accident was not shown. Plaintiff was a fare-paying passenger in a motor bus operated by the defendant. The bus was crowded; the windows frosted. Plaintiff was standing up in the bus when it collided with a street car operated by the defendant. Further details of the accident are not shown, except that there was an unobstructed view of the point where the accident occurred for a block in the direction from which the bus approached. There was a stop sign governing the street car when entering the intersection where the accident occurred.
Plaintiff's injury consisted of a comminuted fracture of the upper right arm. She was taken to the hospital, where the customary effort was made to set the broken bone, including the application of weights to the hand to pull the arm out so that the bones could be properly placed. This was not successful. Next an operation was performed, the arm opened, a steel plate placed in the arm, fastened with screws to the bone, and a band placed around the fracture to hold the loose part of bone in place. This was successful, and the bone healed in proper position. A second operation was performed some weeks later and the metal materials removed. The wound healed properly leaving, however, a scar on the arm almost seven inches in length. Following these operations the entire arm and hand were in casts for long periods of time. After the last operation healed it was discovered that plaintiff had what is described as a wrist drop. This was caused by the controlling nerve becoming encased in the callus that formed when the bone was healed. It did not respond to treatment, and finally plaintiff went to Mayo's at Rochester, where another operation was performed, the nerve removed from the callus and its function restored. The hand during these months was necessarily not used. Then began the treatments of the hand, 121 in number, extending over a period of several months. These consisted of a heat and pressure treatment intended to restore the normal use of the hand. The pain and suffering from the injury, operations, anaesthetics, and treatments are described in the record as severe. There appears to be some restriction in the use of the arm, but no deformity, unless the scar comes within that classification. Plaintiff has become nervous and has lost weight. The evidence was that her hand and fingers had been restored in their use some 50 per cent., but that she could not close the hand so as to "make a fist." The only dispute in the evidence was as to the permanency of the disability. Plaintiff called three doctors who testified that there would be little, if any, further recovery; that further treatments would be useless; and that only use of the hand could help.
Plaintiff was under the care of the medical department of the railroad company. The chief surgeon had performed the operation on her arm and had in large part treated her case. Plaintiff did not call him. Defendant called him as its only witness. He was a bit more hopeful of further, if not complete, recovery in the use of her hand. On this issue the jury must be held to have resolved the question of the permanency of the injury in favor of plaintiff.
Under the operating rules of the railroad, plaintiff could not go back to work until released by the chief surgeon, and he had not restored her to a working status at the time of the trial. The evidence is not at all convincing that she could ever fully perform her former tasks, nor is there assurance of other employment if she failed to satisfactorily do her work, when and if restored to duty.
The trial was had approximately two years after the accident.
The railroad furnished the medical and hospital care so that expense is not involved in this litigation.
Plaintiff alleged that the collision and injuries were the direct and proximate result of defendant's negligence. Defendant by answer admitted plaintiff's status as a fare-paying passenger and the collision, and denied generally all other allegations.
The court instructed the jury in substance that they should find for the plaintiff if she had established by a preponderance of the evidence, first, an injury in consequence of the collision, and, second, a pecuniary damage. Defendant argues that the burden is upon the plaintiff to establish negligence; that only an inference of negligence arises from the fact of the collision, sufficient to take the case to the jury without further proof; and that the defendant could either (1) proceed in an effort to explain away the inference or (2) allow the case to be submitted on plaintiff's testimony. In the instant case the defendant followed the latter course. De...
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