Kimmie v. Terminal R. R. Ass'n of St. Louis
Decision Date | 22 December 1933 |
Citation | 66 S.W.2d 561,334 Mo. 596 |
Parties | George Kimmie v. Terminal Railroad Association of St. Louis, a Corporation, Appellant |
Court | Missouri Supreme Court |
Motion for Rehearing Overruled December 6, 1933.
Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.
Reversed and remanded.
T M. Pierce, J. L. Howell and Walter N. Davis for appellant.
(1) Permitting physicians to testify that a fall might, could or would cause a certain pathological condition is indefinite conveys to the jury no helpful information or aids it in its labors, and allows the jury to speculate and guess as to whether the accident did cause the condition found. O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; Cole v. Railroad, 61 S.W.2d 344; Adelsberger v. Sheehy, 59 S.W.2d 646. (2) As the record contains no probative evidence that plaintiff's condition was caused by the accident in question, a submissible case was not made. As a submissible case was not made, defendant's Instruction D should have been given. (3) Instruction E should have been given to the jury, because the doctors' testimony that in their opinion it was a sarcoma or at least malignant, but that they were not certain of it, that they did not know it, and that they could not tell without a microscopical examination, was uncertain and of no probative value. Plank v. Brown Pet. Co., 61 S.W.2d 328; Haviland v. Railroad Co., 172 Mo. 106 72 S.W. 515. (4) The verdict is excessive.
Charles P. Noell, Charles L. Moore and Allen, Moser & Marsalek respondent.
(1) There was no error in permitting Dr. Henry and Dr. Vezeau to testify, in response to the hypothetical question propounded to each of them, that a fall, such as that described by plaintiff and assumed in the question, might, could or would result in the condition present in plaintiff at the time of the trial. Edmondson v. Hotels Statler Co., 306 Mo. 239; Meyers v. Wells, 273 S.W. 117; McPherson v. Premier Service Co., 38 S.W.2d 279; Stevens v. Westport Laundry Co., 224 Mo.App. 963; Floyd v. A. Y. McDonald Mfg. Co., 46 S.W.2d 256; Nelson v. Kansas City Pub. Serv. Co., 30 S.W.2d 1049; Stewart v. Am. Ry. Express Co., 18 S.W.2d 520; Quinn v. Berberich, 51 S.W.2d 157. (2) The evidence adduced obviously made the case one for the jury. There is no merit in the contention that the record contains no probative evidence that plaintiff's condition at the time of the trial was caused by the fall he received. There is a chain of evidence, from which no link is missing, leading inevitably to the conclusion that plaintiff's condition directly and proximately resulted from the injury he received to his back when he fell from the steps of the engine. Schulz v. Railroad, 319 Mo. 21; Kilburn v. Railway Co., 289 Mo. 75; De Maet v. Storage, Packing & Moving Co., 231 Mo. 619; MacDonald v. Met. St. Ry. Co., 219 Mo. 483; Edmondson v. Hotels Statler Co., 306 Mo. 216. (3) Defendant's Instruction D, designed to tell the jury that there was no evidence that the tumor on plaintiff's side or back resulted from the fall in question, was properly refused. Authorities cited under Points 1 and 2, supra. (4) Likewise defendant's Instruction E, designed to tell the jury that there was no evidence that plaintiff had sarcoma or malignant cancer, was properly refused. (a) The opinions of the experts that the formation on plaintiff's back was a sarcoma was evidence to be considered and weighed by the jury just like any other testimony in the case. Spencer v. Railroad Co., 317 Mo. 503; Conduitt v. Gas & Elec. Co., 326 Mo. 145; High v. Railroad Co., 318 Mo. 452; Morrow v. Gas & Elec. Co., 286 S.W. 116. (b) The opinions of the experts that the formation on plaintiff's back was a sarcoma, together with the medical testimony that trauma is a common cause of sarcoma, and all of the facts in evidence as to the history and development of this formation, fully warranted the jury in finding that it was a sarcoma. Authorities cited under Point 2, supra. (5) There is no merit in the contention that the verdict is excessive. On the contrary, under the circumstances the award is a very reasonable one. Capstick v. Sayman Products Co., 327 Mo. 16; Frese v. Wells, 40 S.W.2d 655; Woods v. Terminal Ry. Co., 8 S.W.2d 922; Pulliam v. Wheelock, 319 Mo. 139; Taylor v. Railroad Co., 311 Mo. 629; Rose v. Telegraph Co., 328 Mo. 1009.
Hyde, C. Ferguson and Sturgis, CC., concur.
This is an action for personal injuries under the Federal Boiler Inspection Act, U.S.C.A., Title 45, Section 23. Plaintiff obtained judgment for $ 20,000, from which defendant has appealed. Plaintiff was an engineer operating one of defendant's switch engines. The facts about how he was injured are stated in defendant's brief as follows:
Defendant contends that its demurrer to the evidence should have been sustained. It bases this upon its contention that there is no probative evidence in the record that the serious injury, of which plaintiff complained at the trial, was caused by the fall. Whether that is true or not, there was substantial evidence that plaintiff fell and sustained some injuries and that the broken sill step was a proximate cause of his fall. The demurrer to the evidence was therefore properly overruled.
Defendant's other assignments of error really go to the amount of the verdict. Plaintiff claimed to be suffering from a sarcoma, or cancerous bone tumor, of the ilium (about half the size of a hen's egg) extending into the sacroiliac joint. If the growth on the ilium was caused by the accident and was a sarcoma the verdict would not be excessive. [Capstick v. Sayman Products Co., 327 Mo. 1, 34 S.W.2d 480.] If, however, it was not a malignant bone tumor, or if, whatever the growth was, it was not caused by plaintiff's fall, the verdict would be greatly excessive. Defendant's contention here is, first, that there is no substantial evidence that the tumor is a sarcoma or cancerous tumor, and second, that there is no substantial evidence that the tumor was caused by plaintiff's fall.
The development of the tumor was related by Dr. Vezeau, who examined plaintiff the day after his fall and treated him thereafter. He said that, upon this examination, Dr. Vezeau said that he saw plaintiff three or four times a week after that and took a number of X-ray pictures. He said:
This laboratory test was made January 22, 1930. Also in January 1930, X-ray pictures of plaintiff were taken by Dr. Briggs. As to what he found then he said: ...
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