Lewkowitz v. United Rys. Co. of St. Louis

• Decision Date: 02 December 1913
• Citation: 161 S.W. 588,178 Mo. App. 629
• Parties: LEWKOWITZ v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

161 S.W. 588

178 Mo. App. 629

LEWKOWITZ v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

December 2, 1913.

EVIDENCE (§ 528) — EXPERTS — PHYSICIAN'S OPINION.

Where a physician who had attended plaintiff after her injury testified that from his examination it was his medical opinion that she was suffering from nephritis resulting from the twisting of a kidney on its pedicle, and that such condition could have been caused from a traumatism, and particularly from a fall of the character described by plaintiff, and the injuries therefrom as they appeared at the time of the accident, his testimony was competent and relevant, though he was also compelled to state on cross-examination that without an operation he could not absolutely tell that the kidney was twisted, and that his conclusion to that effect was a guess.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by Julia Lewkowitz against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Priest, Geo. T. Priest, Samuel McChesney, and Elmer C. Adkins, all of St. Louis, for appellant. Henderson, Marshall & Becker and G. B. Arnold, all of St. Louis, for respondent.

ALLEN, J.

This is an action for damages for personal injuries alleged to have been received by plaintiff while alighting from one of defendant's cars in the city of St. Louis, which it is said prematurely started, throwing plaintiff to the street and injuring her. Plaintiff recovered, and defendant prosecutes the appeal.

The only assignment of error before us pertains to the overruling of a motion of defendant to strike out certain testimony of a physician who testified as a witness for plaintiff. It appears that plaintiff is quite a large woman, and that when she was thrown or fell, while attempting to alight from the car, she struck the end of her spine and the back of her head against the surface of the street, and that the injuries resulting therefrom caused her to be confined to her bed for some ten weeks thereafter.

Dr. Hopkins, who testified for plaintiff, was her family physician. He examined her and treated her shortly after the accident and testified as to her injuries. In describing her condition shortly after she was injured, he said that "the greater portion of the pain was right at what we generally call the small of the back, just above the coupling of the hips and at the end of the spine"; that upon examining the end of the spine he found that he "could double it" (i. e., it was preternaturally movable); and that plaintiff manifested great pain when it was thus moved. He testified that on the evening of the injury he examined the urine and found that it showed signs of bright blood; that blood did not appear in the urine thereafter, however; that it was difficult to tell where the blood came from, but that it could have come from her kidneys; that he examined the urine some 50 times, and every day during the first week after the injury, to see whether there were kidney lesions or anything to manifest an inflammation of the kidneys; that in his early examinations he found no albumen, but that about three weeks after the accident he discovered albumen in the urine, which he stated was one of the prominent symptoms of Bright's disease; that this "means an inflammation of the kidneys," technically known as nephritis, which could result from traumatism; and that a fall of the character such as was described could produce it by causing the kidney to be twisted on its pedicle. A portion of the testimony of this witness on cross-examination by defendant's counsel was as follows: "Q. You said that this Bright's disease might be caused by a twisted kidney; do you know whether that kidney was twisted or not? A. Twisted on its pedicle. Q. Do you know whether it was twisted on its pedicle or not? A. I couldn't see into it, but we have got to take some things for— Q. Do you know, doctor, whether it was twisted on its pedicle or not? A. I couldn't tell whether it was or not; no, I couldn't say it was; only we have got to take...