Hudson v. Kansas City Rys. Co.

• Decision Date: 18 December 1922
• Docket Number: No. 22806.,22806.
• Citation: 246 S.W. 576
• Parties: HUDSON v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

246 S.W. 576

HUDSON v. KANSAS CITY RYS. CO.

No. 22806.

Supreme Court of Missouri, Division No. 1.

December 18, 1922.

Rehearing Denied December 30, 1922.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Action by Monroe Hudson against tile Kansas City Railways Company; to recover damages for personal injuries. Judgment for plaintiff for $7,750, and defendant appeals. Affirmed on condition plaintiff agrees to remit $2,750 from the judgment; otherwise reversed mil remanded.

Chas. N. Sadler and Louis K. Weiss, both of Kansas City, for appellant.

S. L. Trusty and E. H. Gamble, both of Kansas City, for respondent.

Statement.

WOODSON, P. J.

The plaintiff brought this suit in the Circuit Court of Jackson county, having for its purpose the recovery of $30,000 as damages alleged to have been sustained by personal injuries inflicted upon him by the negligence of the defendant in operating one of its street cars in Kansas City, Mo. A trial was had before the court and a jury, which resulted in a verdict for the plaintiff for the sum of $7,750. In due time counsel for defendant filed a motion for a new trial, which was by the court overruled, and the defendant, the appellant; duly appealed the case to this court.

The plaintiff's evidence tended to show that plaintiff at the time of the alleged accident and at the time of the trial was a locomotive engineer, working in both freight and passenger service. On the evening of the occurrence in question, in company with two switchmen, with whom he had been working all day, he attempted to board a west-bound car on James street, in Kansas City, Kan., and while in the act of so doing the folding doors of the car were closed, and at the same time the car was started. His hand was caught between the folding doors, and he was dragged a distance of 50 feet. The testimony of plaintiff's two companions tend to support his version of the accident. Car No. 761 was the car involved in this occurrence.

Plaintiff claims he did not work any from the middle of July until December, at which time he returned to his old occupation as a railroad engineer. At the time of the trial he was earning as much or more than he was at the time of the alleged accident, and was running a locomotive, part of the time in the yards and part of the time as a passenger engineer between Kansas City and Omaha. The plaintiff was treated several times by two regular practicing physicians of Kansas City for the injuries alleged to have been received by him, but neither of them was called as witnesses for him at the trial.

Dr. J. A. McLaughlin, practicing physician, made an examination of plaintiff the day before the trial, and found muscular rigidity on the right side of the spine; also found tenderness and soreness in the spine and left shoulder; there seemed to be a paralysis of the skin of left arm; made this test by scratching his arm with a pin, and there was not any feeling; motion in left arm inhibited; hearing seemed to be defective; an injury such as I have described could have caused his present condition; never at any time treated plaintiff, but examined him at the request of his attorneys, presumably for the purpose of testifying.

Dr. Noah Adams:

Eye, ear, nose and throat specialist; at the request of one of plaintiff's attorneys I made the examination of him this morning in my office; found his hearing in left ear about one-third normal; he had lost about three-fourths of the hearing in that ear; found the ear drum membrane was retracted or drawn; made an examination of his eyes, and found the vision in the right eye twenty-thirtieths and the left eye twenty-fortieths; the normal vision is twenty-twentieths; his vision is not normal in that he sees with his right eye at 30 feet what he should be seeing at 20, and with his left eye he sees at 40 feet what he should be seeing at 20; in my opinion the condition I found could have come from the injuries set forth in the question.

The defendant's evidence tended to show that it had no knowledge of the alleged accident or injury, and by way of defense defendant accounted for car No. 761 on the day of the occurrence, and produced the conductor working thereon at that time, who testified positively that no such accident as detailed by plaintiff occurred. Defendant further produced witnesses from its mechanical department who testified that the construction of the car made it physically impossible for such an accident to have occurred as related by plaintiff; that the conductor on a car of this type is powerless to raise the step and close the doors when there is a person standing on the step.

Plaintiff's injuries, if any, were not serious. He suffered no fractures and at the time of the trial there was no external evidence of injury if there ever had been. He went home on a street car, and the same evening called at the office of Dr. Sparks, about half a block from plaintiff's residence. The doctor gave him some attention, and plaintiff called at his office again the next day. Plaintiff called at Dr. Sparks' office five or six times in the two weeks next following the alleged accident, and then consulted Dr. Bennett, an osteopath, from whom he took osteopathic treatments at intervals up until the time of the trial.

At the close of plaintiff's case defendant asked an instruction in the nature of a demurrer to the evidence, which the court overruled. Thereupon defendant produced...