Kimmie v. Terminal Railroad Assn.

• Decision Date: 22 December 1933
• Docket Number: No. 31524.,31524.
• Citation: 66 S.W.2d 561
• Parties: GEORGE KIMMIE v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant.
• Court: Missouri Supreme Court

66 S.W.2d 561

GEORGE KIMMIE v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant.

No. 31524.

Supreme Court of Missouri.

Division One, December 22, 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.

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:

"The gravamen of plaintiff's petition is that a piece or part of the tread of the step on an engine, on which plaintiff was working was broken out, causing plaintiff's foot, as he climbed down said step, to become wedged therein in such a manner as to throw him to the ground and injure him.

"Plaintiff's evidence tends to show that on October 9, 1929, defendant was generally engaged as a railroad in interstate commerce, which defendant admitted. About three P.M., on said day, in the City of East St. Louis, Illinois, in defendant's Wiggins No. 2 Yard, as plaintiff was alighting from defendant's engine No. 178, to discontinue work for the day, although he knew and had known for a long time that a portion of the tread of the sill step on said engine was broken out, he placed his right foot on the top step about the middle of the tread, and, with his left foot on the ground, the instep of his shoe slipped into the broken out portion of said step. Losing his balance and seeing that he was going to fall, he threw himself to the left as much as he could and that is all he knew, because on coming to his senses he was dazed. The step was on the right hand or west side of the engine, which was headed south. The lower step was four or five inches from the ground. The top step was around eleven inches or a foot above that. Plaintiff stated that his left foot was solid on the ground and that he had hold of the handrails at the same time. On cross-examination he said that his left foot slipped off, just as he went to step back, make his step, my foot caught in there; that he did not know what caused his foot to get in there. Plaintiff's Exhibits `A' and `B' show that (on October 6th and 8th, 1929) he reported that a piece broke out of step between engine and tank on right side. Plaintiff's evidence tends to show that he struck the lower part of his back and spine on a tie."

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.

[1] 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, "I didn't find anything outside of a little swelling, considerable rigidity; what I mean by `rigidity' is over the lower spine and lower back there was a stiffness there, supposing there was some injury.... I put adhesive on the back about ten inches over here, over to the point of soreness; we term that `immobilization;' that is adhesive plaster, and a nerve sedative, and some anti-pain tablets, and sent him home." 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: "At the beginning I couldn't find no injury there; that is, in reference to the X-ray, I couldn't find no injury, outside of a little cloudiness in the joint... . A. That is what we found, a cloudiness. We presumed it was acute. And later on there was right above this bone here, there was a — under this swelling — there was a baggy formation, and I drawed out about three tablespoonfuls of clear fluid. I sent that to Grandwohl's Laboratory which we checked up on t.b. all the time from those fluids, and it come back negative, only that they found a lot of white blood cells."

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: "This is Exhibit `C,' which is a picture of the lower lumbar vertebrae and the sacroiliac joints. There is no evidence of fracture here that I could see. There are traces of arthritis; that is, an inflammation of the joints... . Q. Doctor, on the plates you took prior to this (referring to the picture taken in December, 1930) you didn't — you stated you didn't find any such tumor as this; is that true, sir? A. No, there was nothing shown in the earlier plates. Q. In the earlier plates it is not there at all? A. No. Q. It has developed then since the taking of this picture? A. That developed since."

Dr. Vezeau testified as to the...