Kasten v. St. Louis Public Service Co.

• Decision Date: 20 June 1950
• Docket Number: No. 27931,27931
• Parties: KASTEN v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 252

231 S.W.2d 252

KASTEN v. ST. LOUIS PUBLIC SERVICE CO.

No. 27931.

St. Louis Court of Appeals, Missouri.

June 20, 1950.

Motion for Rehearing or to Transfer to Supreme Court Denied

July 18, 1950.

Wm. C. Connett, IV., St. Louis, Edw. A. Haid, St. Louis, Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel, for appellant.

Arthur J. J. Bohn, St. Louis, Mark D Eagleton, St. Louis, for respondent.

ANDERSON, Presiding Judge.

This is an action for damages for personal injuries sustained by plaintiff, Eva Kasten, in a collision between a streetcar of defendant, St. Louis Public Service Company, and an automobile operated by plaintiff.

The accident occurred on May 13, 1948, at the intersection of Grand Boulevard and Miami Street in the City of St. Louis. Upon trial to a jury, a verdict was returned in favor of plaintiff for the sum of $10,000, which was reduced by remittitur to $7,500. Defendant has appealed from the judgment rendered on said verdict.

The first point made in appellant's brief is that the verdict is against the evidence. Such an assignment is too indefinite to be considered on appeal. Bennett v. Brotherhood of Locomotive Firemen and Enginemen, Mo.App., 82 S.W.2d 601; Harmon v. Irwin, Mo.App., 219 S.W. 392; Hooper v. Wineland, Mo.App., 131 S.W.2d 232; Martin v. Bulgin, Mo.App., 111 S.W.2d 963.

Appellant's next point is that the court erred in not sustaining appellant's motion for new trial. Such assignment is likewise too general and presents nothing for review. Pfotenhauer v. Ridgway, 307 Mo. 529, 271 S.W. 50; Garvey v. Piel, Mo.Sup., 43 S.W.2d 774; St. Louis-San Francisco R. Co. v. Dillard, 328 Mo. 1154, 43 S.W.2d 1034; Bachman v. Quincy, O. & K. C. R. Co., 310 Mo. 48, 274 S.W. 764; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; In re Nelson's Estate, Mo.App., 185 S.W.2d 890; Weil Clothing Co. v. National Garment Co., Mo.App., 148 S.W.2d 586.

Appellant next urges: (1) that the trial court should have sustained its motion for new trial on the ground of excessiveness of the verdict instead of entering an order overruling the motion upon plaintiff remitting the sum of $2,500; and (2) that the verdict, even as reduced by remittitur, is excessive. This necessitates a review of the medical testimony and other evidence bearing on the nature and extent of plaintiff's injuries.

At the time of the accident plaintiff was thrown from the automobile to the street, and by reason thereof was rendered unconscious for about one-half hour. From the scene of the accident she was conveyed in an ambulance to the City Hospital, where she remained for a period of four days. While at the hospital, according to her testimony, plaintiff suffered from extreme pain in her head and back. An examination at the City Hospital disclosed that plaintiff, as a result of the collision, sustained a concussion of the brain, fractures of the 4th, 5th, and 6th ribs on the left side of the body, a hemothorax in the left chest, a swelling in her left side at armpit line, a swelling in the occipital region of the scalp, a swelling in the parietal region of the scalp, and a laceration on her left knee.

While at the hospital plaintiff remained in bed. On Monday, May 17, 1948, plaintiff was taken to her home. Immediately upon arriving home plaintiff called her family physician, Dr. Eber Simpson, who examined and treated her that day. Plaintiff remained in bed at her home constantly for the next two weeks and was attended daily by Dr. Simpson, and then for the next two months she was confined to her bed most of the time, but made trips to the doctor's office for treatment. Thereafter, plaintiff continued to receive treatment at Dr. Simpson's office.

At the time of the trial, October 10, 1949, plaintiff was still under the care of Dr. Simpson. Plaintiff testified that she still suffered from pain in the left side of her body. She stated that the pain was: 'Along underneath the breast, there at the rib section * * * I always have pain. But the stabbing pain is what is so terrific * * * I have been sitting perfectly still on a chair, and it would stab, and then again if I sneeze or cough, blow my nose terrifically, a little more than a little hard, move a little bit more than I should; what I mean is, in a turning away, then I get that. But I have had it just sitting perfectly still.'

Testifying further, plaintiff stated: 'I have terrible headaches * * * I have got headache a lot, and it is bad, and it will last, and sometimes my head feels like it's just blowing up, going to burst. * * * There are not many times that I don't have it. * * * I take medicine that Dr. Simpson has given me. I take aspirin a lot, and they will stop sometimes; sometimes I have got them for three or four days at a time. * * * I am very nervous. * * * I shake in the inside; I get sick to my stomach. * * * Well, everybody else can see that I am nervous and that I kind of fly off. * * * I don't sleep at all. I have a terrible time sleeping; I don't sleep good when I do sleep; I dream, wake myself up in a sweat and shaking all over. * * * I haven't had one good night's sleep since that accident, not one good night's sleep; and I have taken things to sleep, too. * * * I have two kinds of medicine; just exactly what they are for I am not in a position to say, I didn't see the prescription; but I do know that one is a nerve pill, I know one is a pain pill. * * * I take aspirin all the time.'

Plaintiff testified further:

'I didn't do anything around the house for six months. * * * if I would just bend quickly, I mean turn quickly and forget myself and go to wrench around quickly, I would get a short, stabbing pain, and I couldn't do anything; I couldn't move a chair. * * * my husband telegraphed to my sister in Philadelphia and she came and stayed with me. * * * She was here for a little more than six months, a week or so.

'Q. And in that six months were you able to perform any of the normal duties of your household, running the household? A. No, sir.'

According to Dr. Simpson's records, plaintiff made three or four trips monthly to his office for treatment. He stated she was using heat to her chest, and taking medicine to relieve pain and nervousness.

On his first visit to plaintiff, Dr. Simpson strapped her chest and applied ice packs to her head. He also gave plaintiff medicines to ease her pain and to quiet her nerves. The straps were removed on July 3rd. Dr. Simpson testified:

'She has, I would say, four main complaints: one is she complains of headaches, nervousness, can't sleep at night, and pains in the chest as she moves, shifts; as she lifts things up she has pain in the chest * * * at this time she is using heat to her chest and she is taking medicines * * * medicines for pain and medicines for her nervousness * * * She tells a great deal of being nervous, can't sleep; has a sort of fine tremor when she puts out her hands.

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'Q. The fact, Doctor, that this lady still has pain in her chest, left side of her chest, Doctor, the fact that she is still complaining of headaches and nervousness and inability to sleep after this length of time, can you give us any conclusion, Doctor, with reasonable degree of medical certainty as to how long she will continue to suffer from these pains and disabilities. A. She has been this way since the accident, that will be about eighteen months, I guess, roughly. I would have to conclude that having this long she may have them for the rest of her life, permanently.'

The doctor further testified that with three fractured ribs there would be some injury to the soft tissues around the ribs, and that pain in the left side of the chest would be a reasonable complaint in view of the fractures and injuries she suffered.

On cross-examination Dr. Simpson testified that X-rays taken about a year after the accident showed that the ribs had healed. He stated there was no evidence of puncture of the lung, and that the swelling in the chest had gone; that the swelling on plaintiff's head disappeared within ten days after the accident; that the cut on the knee healed naturally, and that the swelling on the chest was present for four or five weeks, then disappeared. Dr. Simpson further testified:

'Q. So within six months of the accident all outward physical evidence of the injuries had disappeared, is that correct? A. In six months, yes; right.

'Q. The only things left were the subjective complaints of the patient? A. That's right; yes, sir.

'Q. And your conclusion is based upon her statements to you of what she sufferred from, is that right: sleeplessness and nervousness, is that right? A. Yes, sir, that's right.'

The doctor further testified that the X-rays taken at the City Hospital and those taken by him failed to reveal any evidence of skull fracture. He stated:

'Q. So far as you could determine from the X-rays, there was no apparent cause of the headaches? A. That's right. Yes, sir.

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'Q. And your judgment as to the length of time or the permanency of these injuries is based upon her subjective complaints; you have no evidence, clinical evidence, that is, other than her complaints, as to how long they will last, is that correct? A. That's correct, yes, sir.

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'Q. Isn't it true that most people have broken ribs, where the lungs are not broken, I think the hospital record refers to it as a simple fracture; don't they completely recover? Isn't that the usual course? A. Yes, say 90%.

'Q. And as a result, 90% of the people have no subsequent discomfort, is that right? A. A simple fracture, yes, sir; that would be correct.'

The doctor further testified that a concussion can be anything from a temporary one second blackout, to unconsciousness for days, and that an X-ray would not show a hemorrhage in the brain caused by a concussion; that the mere fact that it showed no fracture of the skull would not rule out justification for her headaches; that a...