Kinchlow v. Kansas City, K. V. & W. Ry. Co.

• Citation: 264 S.W. 416
• Decision Date: 10 June 1924
• Docket Number: No. 24001.,24001.
• Court: United States State Supreme Court of Missouri
• Parties: KINCHLOW v. KANSAS CITY, K. V. & W. RY. CO.

264 S.W. 416

KINCHLOW v. KANSAS CITY, K. V. & W. RY. CO.

No. 24001.

Supreme Court of Missouri, Division No. 1.

June 10, 1924.

Motion for Rehearing Overruled July 31, 1924

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Eulon Kinchlow against the Kansas City, Kew Valley & Western Railway

Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

H. R. Freeman and T. J. Madden, both of Kansas City, for appellant.

J. M. Fisher and R. R. Brewster, both of Kansas City, for respondent.

SMALL, C. I.

Appeal from the circuit court of Jackson county. Suit for damages for personal injuries sustained by plaintiff while a passenger on one of appellant's west-bound passenger cars.

The plaintiff was a stone mason living at Bonner Springs, Kan., and on January 4, 1921, he boarded defendant's said car at Fifth and Wyandotte streets in Kansas City, Mo., for the purpose of being transported to said Bonner Springs. The car stopped at Fifth and Bluff streets in said city, a few blocks from where plaintiff had entered it when another car of defendant, by reason of defective brakes thereon, ran into the rear of the car in which the plaintiff was seated. The motorman in charge of the car which caused the collision was a witness for plaintiff and testified, in substance: I could not get more than 20 pounds of air, and that would not stop in that distance on account of the triple valve being stopped—having two stopped valves. The motorman's valve is in his cab, and the triple valve back in the car. I operated that car once or twice a week for nine months, and the tripple valve had stuck before. I knew it was out of order and had been giving trouble for six months before that. I made a written report and left it in the box for the superintendent at least a week before the accident. I made three reports before the accident, the first one about four months before. The triple valve bad been out of order that long. They would work it over, but they did not seem to find the defects in it. I last reported the car about a week prior to the accident and the valve was out of order since then. The defendant offered no evidence contradicting this testimony of the motorman.

Plaintiff's evidence further tended to show: That by reason of the collision the car which he was on, which weighed about 20 tons and was loaded with passengers, with the brakes set, was knocked about one foot forward and be was thrown backwards, striking his head at the base of the brain on the top of his seat. There was a small strip of iron or wood about the size of the thumb on the top of the back of the seat which was covered with leather and an iron handhold on the corner of the top of the seat near the aisle. The rear car was disabled to such an extent that it did not proceed on its journey and its passengers were loaded into the car where the plaintiff was. The plaintiff testifies that immediately after the accident, and while the car he was on was standing at Fifth and Bluff streets, be became sick at his stomach and left said car several times in an attempt to vomit, and then re-entered the car to continue his journey to Bonner Springs. That after his car resumed its journey he lapsed into unconsciousness until he reached the city park in Kansas City, Kan., when he recognized Mr. Partee sitting across the aisle from him. He then again became unconscious and remembered nothing more of his journey until some one notified him they had reached Bonner Springs. He was helped to the ground there and he went to Dr. Gambler's office. He was the physician of the defendant company. That he told the doctor his head was bursted and bleeding; that he could feel the blood running down his back. The doctor examined him and told him that he was not bleeding, and gave him some medicine for his head. After he left the doctor's office, the ground seemed coming up to him and he had to stop; got dazed and lost and was taken home by a man in a jitney. The man alighted and helped him down the hill towards the log cabin where he lived and told him to go straight west, and the next he remembered was waking up in bed about 8 o'clock the next morning in his cabin. Dr. Cambler came to see him that morning and five or six times at his home, where he was confined to his bed most of the time for two or three weeks, and sat propped up in a rocking chair part of the time. Dr. Cambler examined him and left medicine for him. Dr. Cambler brought Dr. Hayes, a nerve specialist, head of the Eonner Springs Sanitarium, who also examined him. Before his injuries he worked for the Portland Cement Company, and could do all kinds of hard work. Dr. Unthank and Dr. Humbert of Kansas City, Mo., called to see him about two weeks after he was hurt. They examined him and ordered him to the Wheatly Hospital at Kansas City, a hospital for colored people, to which race he belonged. He was there nine or ten days. They kept cracked ice at the back of his head day and night and gave him medicine for his head. At the end of ten days he left the hospital and returned to Bonner Springs and was confined to his bed for three months after that; part of the time he sat up in a rocking chair. He could not rest or sleep at night during that time. Could not lie backwards or sidewise; had to sit up straight to rest; could not lie down because he became dazed. His eyes swell shut and that makes his head hurt. He has a feeling in his head all the time—a stewing "like the steam that comes out of the pipes. It is worse at night."

"Q. Were your eyes affected by this accident? Mr. Conkling: I object to that as calling for a conclusion and opinion and invading the province of the jury Court: The objections are overruled. (To which ruling of the court the defendant by its counsel then and there duly excepted at the time and still excepts.) A. Yes, sir; they were. Q. Are they still affected? A. Yes, sir." His eyes go backward and forewards like they were on a pivot.. Cannot work at anything very long—it is like a fog if I look at anything very long, and I feel like I want to fall over on my face. "My eyes turn red and get bloodshot." His legs become stiff and he has no feeling in his arms and legs. Has no control over himself; totters from one side to the other; imagines he is falling and does not have any grip. Has not been able to work since the accident; tried it several times. If he stoops over "I go over on my face and my head pops open and I become stone blind and cannot see anything, and I get sick at my stomach, almost. I ache and I become nervous and I cannot hardly hold myself. I cannot move. I have headaches every minute in the day since the accident, sharp pains in my head, kinda roaring like insects or singing in my ears, and have that continually, right in the top of my head." "Q. Are, you nervous as a result of this injury? Mr. Conkling: I object to that as a conclusion and opinion and invading the province of the jury. Court: The objections are overruled. To which ruling of the court defendant by its counsel then and there duly excepted at the time and still excepts. A. Yes, sir; I am." I have nervous chills and I tremble. If anything drops by the side of me I become nervous and I drop the cane out of my hand. I walk with a cane most of the time, cannot walk very good without it. I do not hear well; I feel like my ears are cemented up and heavy. I noticed that the same night I got the lick in my head, I never had anything like that before. I do not see well; my eyes seem like blind-like, they have a scum over them. I noticed that the night I got the lick on my head; I never had that before. A pin could be stuck in my hands at times and I could not feel it. The doctors have tried that. My legs are in the same condition. I noticed this about a week after I was hurt when the doctors stuck pins in my arms and legs. I never had any such condition before the accident. Before I was hurt I received $35 per week for my work. Not been able to work since. I had recovered from other accidents I had except my right elbow.

Cross-examination: The back of my neck is stiff now. My head came in contact with the seat at the time of the collision. Neck not struck, but it hurt my neck. When the collision occurred, I was raising up in my seat to see what was ahead. It was not so dark, it was about 5:30 in the evening. After the collision I got off and on again by myself. Nobody helped me. I tried to throw up. Do not even remember getting off at Bonner Springs. It was a block to the doctor's office; do not know how I got there. I told the doctor my head was "busted" and blood running down my back. Dr. Unthank and Dr. Humbert never attended me before I went to the Wheatly Hospital. My wife took me to the Kaw Valley Line in an automobile and took me down (to the hospital) on the electric line. I have tried to work. Tried to build a chicken house; tried to nail a couple of boards, but the sound of the hammer went into my ears and I had to quit. Tried no other work. Was down in Kansas City one day last week by myself. The only treatment I have had has been for injuries to my head. I have a claim against the Union Pacific which I settled for $1,250. Also against Armour & Co., which they settled for $300. Also against the Bonner Portland Cement Company which they settled for $1,250. I also had another claim against the Kaw Valley Line, but never sued them. Did not settle this claim—do not know what became of it.

Re-examination: Am not claiming damages in this suit for any injuries received in any other accident. "Q. How much did you weigh before the accident? Mr. Conkling: I object to that as asking for matter not covered by the pleadings. Court: Objection overruled. (Duly excepted to.) A. One hundred and seventy pounds." "Q. What do you weigh now? (Same objection, ruling and exception.) A. One hundred and twenty-eight pounds the last time I weighed. That has been quite a while."

Recross:...