Hoffman v. Illinois Terminal R. Co.
| Decision Date | 18 January 1955 |
| Docket Number | No. 29028,29028 |
| Citation | 274 S.W.2d 591 |
| Parties | Archie HOFFMAN (Plaintiff) Respondent, v. ILLINOIS TERMINAL RAILROAD COMPANY, a Corporation (Defendant) Appellant. |
| Court | Missouri Court of Appeals |
Ely & Ely, Robert C. Ely, St. Louis, for appellant.
Glennon T. Moran, St. Louis, for respondent.
HOUSER, Commissioner.
This is an action for damages for personal injuries brought by Archie Hoffman, a passenger, against Illinois Terminal Railroad Company, a common carrier. From a judgment of the Circuit Court of the City of St. Louis entered upon a jury verdict for plaintiff for $2,000 defendant has appealed to this court.
In his petition plaintiff alleged that while a fare-paying passenger he sustained permanent injuries when he was caused to be thrown and fell from a bus owned and operated by defendant, as a result of defendant's negligence in suddenly stopping the bus as plaintiff was preparing to alight. Defendant's answer denied the allegations of the petition, generally and specifically.
For its first point defendant asserts that the court erred in submitting permanent injuries as an element of damages. In answer to a hypothetical question during his direct examination plaintiff's doctor testified that the accident aggravated a preexisting condition of hypertrophic arthritis in the left hip, caused pain as a manifestation, and that in his opinion 'that condition' will remain permanent. On cross-examination, however, the doctor testified that the permanent condition to which he was referring in his previous testimony was the presence of calcium deposits. These deposits had accumulated as the result of an old hip injury which occurred 25 years previously, and were not attributable to the instant injury. Then the following questions and answers appear of record:
We are not called upon to decide whether the testimony of the doctor on direct examination, standing alone, would have authorized the submission of the question of permanent aggravation of a preexisting arthritis, because it is obvious that his direct testimony did not reflect the doctor's actual and final opinion. On cross-examination the doctor explained his views in more detail, and finally stood upon the opinion that it was the condition of calcium deposits and narrowing, and inferentially not the aggravation and pain, that was permanent. When all of the doctor's testimony was in it was apparent that he repudiated aggravation of the preexisting arthritis as a permanent effect of the injury. Consequently his original testimony, which seemingly linked aggravation and pain with permanency, no longer had any probative force. See Carrow v. Terminal R. Ass'n of St. Louis, Mo.App., 267 S.W.2d 373, loc. cit. 378. Nor does plaintiff's own testimony make out a submissible case of permanent injury. He testified that for 4 or 5 years after the injury which occurred 25 years ago he had pain in his hip and back, but that he got over the pain and for 20 years had been free of pain. In the instant case his head struck a pole and he reeled around and struck his hip against a building. His back, hip and leg bothered him. He had pain and stiffness. After the injury on Friday he consulted a doctor on the following Monday. After three unproductive visits he did not return to that doctor. His legs kept bothering him, however, and he got 'worse and worse.' Finally, 5 or 6 months after the accident, he went to another doctor. He was having sharp pain all the time. He could not sleep at night. At the time of the trial, 14 1/2 months after the accident, he said that it bothered him all the time. He testified that when he gets up in the morning he is stiff and sore, and after working all day he sometimes feels like he can hardly get home. He cannot sleep. He cannot lie on his left side at all. The condition at the time of trial was substantially 'the same as it was.' Although plaintiff's own evidence would warrant a finding that he will have pain and difficulty in the future, there is nothing in this record to indicate how long in the future it will continue. "To say of a thing it is permanent means that it will continue regardless of a contingency or fortuitous circumstance." Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328, loc. cit. 334. 'To recover damages for permanent injury the permanency of the injury must be shown with reasonable certainty and while absolute certainty is not required mere conjecture or likelihood, or even a probability, of such injury will not sustain the allowance of damages therefor.' Weiner v. St. Louis Public Service Co., Mo.Sup., 87 S.W.2d 191, loc. cit. 192. Taken as a whole the record does not support the instruction authorizing a recovery for permanent injuries. Brooks v. McCray, Mo.App., 145 S.W.2d 985; Weisman v. Arrow Trucking Co., Mo.App., 176 S.W.2d 37. Where there is no evidence to substantiate a finding of permanent injury it is reversible error to submit the question to the jury. State ex rel. Kansas City Public Service Co. v. Shain, 350 Mo. 316, 165 S.W.2d 428; Weiner v. St. Louis Public Service Co., supra.
Defendant next makes the point that the court erred in refusing to permit defendant's attorney to cross-examine plaintiff concerning certain allegations in his petition which were at variance with his testimony. The original petition charged that plaintiff was thrown from defendant's bus 'to the pavement.' According to his testimony he was thrown from the front door of the bus into a telephone pole which dazed him, and then he reeled around and struck a building with his left hip. He did not at any time testify that he fell to the pavement. Defendant's counsel at first undertook to offer the original petition in evidence. The offer was not pressed after the court suggested that such an offer would constitute a waiver of defendant's right to request a directed verdict. The court then sustained plaintiff's objection to further reference to the petition unless it be introduced in evidence. Defendant's counsel then inquired if the ruling meant that defendant might not cross-examine plaintiff on the contents of the petition, and the court answered 'Yes, sir,' thus cutting off any inquiry into the variance between plaintiff's original petition and his testimony.
Plaintiff's counsel cites Lammers v. Greulich, Mo.Sup., 262 S.W.2d 861, as a 'full answer' to defendant's argument. The opinion in that case reaffirms the rule that admissions in pleadings cannot be regarded as evidence unless the...
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