Keener v. Missouri Pac. R. Co.

• Decision Date: 06 March 1925
• Docket Number: No. 3689.,3689.
• Citation: 269 S.W. 635
• Parties: KEENER v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

269 S.W. 635

KEENER v. MISSOURI PAC. R. CO.

No. 3689.

Springfield Court of Appeals. Missouri.

March 6, 1925.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by R. T. Keener against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition of filing of remittitur; otherwise, reversed and remanded.

James F. Green, of St. Louis, and J. C. Sheppard, of Poplar Bluff, for appellant. Sam M. Phillips, of Poplar Bluff, for respondent.

COX, P. J.

Action for damages for personal injury. Plaintiff recovered, and judgment went in his favor for $7,500. Defendant appealed.

The only question pressed in this court is that the damages are excessive. That being true, we need not relate in detail all the facts surrounding the injury. Plaintiff was a stock shipper, 54 years of age, and was riding in a caboose at the rear of the train.

The caboose gave a sudden jerk, and threw him against a desk or table and broke one rib on the right side, three ribs on the left side, and injured his spleen. Some of the ribs were broken in two or three places. He suffered great pain, and was still suffering at the time of the trial, 6 months after the injury was received. Up to that time he had not been able to do any work, had tried to work shortly before the trial, but found he could not. Before the injury he was strong and healthy, and weighed 203 pounds. At the trial, 6 months later, he had lost 27 pounds in weight.

It was shown that the spleen manufactures red corpuscles for the blood, but there was a disagreement between physicians who testified in the case as to the effect on the general health of an individual whose spleen should fail to properly function. The evidence as to whether the injury to the spleen was permanent is not satisfactory. There was no blood test made, which might easily have been done, and, had such a test been made, it could have been ascertained whether or not there was at the time of the trial any deficiency of red corpuscles in the blood. Dr. Taylor, who treated plaintiff for the injury, was not certain whether his injuries were permanent. In answer to a direct question, he testified that the injury to the spleen was necessarily bound to be permanent, but in answer to other questions stated that he was in doubt as to the outcome in the future. In one place in the record of his testimony we have the following:

"The future in this case is to me a little cloudy. I hardly know what will happen to a man in the future. If his present physical condition continues, he is practically an invalid the rest of his life, unfit to perform manual labor; in fact, it might be hazardous. Of course, in time he might outgrow it, but he may not. That is a problem I cannot solve. So far he has not responded to treatment as patients usually do. The response has been almost nil—a continuous falling off."

On cross-examination in relation to the injury to the spleen we find the following:

"Q. That has healed up, has it not? A. Well, it is practically in its normal relationship now as well as I can make out."

This physician also testified that in his opinion a fibrous growth caused by the injury to the spleen had affected the diaphram and the lower part of the left lung. He did not know this to be so, but he thought it was so. Another physician who, with Dr. Taylor, examined the plaintiff at the time of the trial testified that there was then no swelling of the spleen, or, if any, it was so slight that he could not detect it and he could find nothing that would satisfy him that pl...