Mayne v. Kansas City Rys. Co.

• Decision Date: 23 March 1921
• Docket Number: No. 21775.,21775.
• Citation: 229 S.W. 386,287 Mo. 235
• Parties: MAYNE v. KANSAS CITY RYS. CO.
• Court: Missouri Supreme Court

229 S.W. 386

287 Mo. 235

MAYNE v. KANSAS CITY RYS. CO.

No. 21775.

Supreme Court of Missouri, Division No. 2.

March 23, 1921.

Motion for Rehearing Denied April 7, 1921.

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

Action by Emma E. Mayne against the Kansas City Railways Company. From judgment for plaintiff, defendant appeals. Affirmed.

E. E. Ball, of Kansas City, and L. T. Dryden, of Independence, for appellant.

E. C. Hamilton, of Independence, for respondent.

WHITE, C.

The appeal is from a judgment for $20,000, recovered by the plaintiff as damages on account of personal injuries. Lexington street, Independence, runs east and west. It is intersected by Orange street running north and south. The defendant's street railway tracks run along Lexington street; a track comes in from the north on Orange street and turns into a track on Lexington street. After turning from Orange into Lexington street, a car stands to receive passengers in front of the post office, which is on the north side of Lexington street.

On December 24, 1917, a car of the defendant came from the north on Orange street and turned the curve into Lexington street, heading towards the west. A number of persons, including the plaintiff and her sister, were waiting at that point in front of the post office to take passage on a car going west. Some of those persons immediately boarded the car. It was then announced by the conductor in charge that the car would not go on west. Such passengers as had boarded the car got off. The switch connecting the track coming in from Orange street with the Lexington street track was thrown, and the motorman attempted to back the car eastward on the track on Lexington street. The rear trucks of the car passed on east, but the switch then became "split," as it was termed, so that the front trucks of the car, instead of going east, turned northward as if to pass on to the track on Orange street. That caused the front end of the car to swing around in a sweep toward the curb on the north side of Lexington street and against the crowd of persons waiting to take passage. The end of the car swung so far, the evidence shows, that it struck an iron post which stood between the curb and the sidewalk at the northwest corner of Lexington and Orange. It struck a number of persons, knocking several down, and three women at least had to be picked up by other persons. The plaintiff's sister was dragged from under the car when it stopped; the plaintiff was struck and crushed over against the iron post mentioned, or against the curb. According to the evidence, when the car stopped the fender either was against the post, or very close to it. The fender was injured and had to be removed. Whether its removal was made for the purpose of getting the persons from under it, or whether the car could not proceed with it in that condition, does not appear from the evidence.

The number of persons at the point waiting to board the car was variously estimated at from a dozen to 30. A number of them testified, and all substantially to the same effect, as to the movement of the car in taking the split switch, the swinging around of the front, and the crashing into the throng of people. Among the witnesses was the motorman in charge of the car, whose testimony was offered by the plaintiff. The defendant offered evidence to show that the wheels of the car and other parts were in good condition. The evidence tended to show that the split switch might have been caused by various means, by a defective wheel, broken flange, obstruction in the track, or too rapid backing of the car.

The injuries of the plaintiff were of the most serious character. Her hip was torn from the socket; the bones in the region of the hip were fractured in five or six places. The technical names of those various bones were given, and the condition explained by surgeons who attended the patient and took X-ray pictures of them. The bones were thrust out of place, and grew together again in a misplaced condition, so that the result was an abnormal contraction of the pelvic cavity and the birth canal. It was testified that it would afterwards be impossible for the plaintiff to give birth to a normal child. Some of the bones overlapped so that there was painful and defective locomotion. One fragment of bone was thrust downward, so that it was impossible for her to sit comfortably except upon a pillow; other fragments were thrust into the pelvic cavity, causing painful menstruation. The expert evidence showed that it was impossible properly to set the bones; the only thing that could be done was to reset the hip joint, which had been torn from its socket. There was no way known to the surgeons by which the broken and crushed bones in that region could have been replaced in their normal condition. Such injuries, the surgeons said, usually were fatal, although the plaintiff survived. The movement of the plaintiff's right leg was impaired, and when she walked, one with hand on her hip could feel the click-click of the hones. She walked painfully and with crutches. She was in a sanitarium undergoing treatment for about 10 weeks, and afterwards was enabled to move around with difficulty. At the time of the trial, some 14 months after the injury, she still went on crutches a great part of the time, used her muff or a pillow to sit on, was able to do very little, and only the lightest housework, whereas before her injury she was in good health, and did all her own housework. It was the opinion of physicians that her injury was permanent, with no possibility of any substantial relief. No attempt was made by the defendant to minimize the injuries which she was shown to have suffered.

1. The appellant asserts that the trial court erred in allowing the plaintiff to prove her inability, after the accident, to give birth to a child. The allegations of the petition relating to the nature of the injuries received are as follows:

"The lower part of her body about the hips was crushed, the right pubic bone fractured, the left pubic bone fractured, the right ischium was broken, the left ischium broken, and the back of her hips so mashed and crushed as to tear loose the right osinominata from its articulation with the sacrum; the left hip was torn wrenched, and dislocated, resulting in a rupture, strain and wrench of the ligaments thereto attached; the organs within the cavity of the pelvis were crushed and injured, including the bladder, the functions of all of which said organs have been seriously and permanently impaired; that the tender nerves, blood vessels, and tissues within the pelvis, and surrounding and adjacent to said injured parts, have been torn, lacerated, and injured, and their functions permanently impaired; that she has sustained a lasting and permanent shock to her whole physical and nervous system, which has been shattered, wrenched, and permanently impaired."

It is argued that these allegations were not sufficient to allow the introduction of such evidence because there is no specific mention of that particular impairment in the injured organs. The case of Hall v. Coal Co., 260 Mo. 351, 168 S. W. 927, Ann. Cas. 19160, 375, is cited by appellant in support of the position, where it is held that, when the petition alleges special damages in a personal injury case, the proof must be limited to the special damages pleaded; that where a specific result necessarily follows from a stated injury it is not necessary to plead it, but where it is the natural, but not the necessary, result of the injury it would have to be pleaded in order to admit evidence of it. As an illustration used in the Hall Case, 260 Mo. loc. cit. 373, 168 S. W. 927, Ann. Cas. 19160, 375, an injury to the lungs might result in pneumonia, but not necessarily so, and such result would have to be pleaded before it could be proved.

Some uncertainty appears in some of the cases in the use of the expressions "general damages" and "special damages." This arises from confusing the facts constituting a specific injury with the resultant damages which flow from it. If an allegation of damage contains a general term in describing what follows the injury, then any result coming within the content of that term might be proven without specific allegation. For instance, an allegation that the injury caused the lung to be diseased would let in evidence of pneumonia. If the defendant in such case were not satisfied with the pleading he could move to make more specific. This is particularly explained in the Hall Case; for instance (260 Mo. loc. cit. 371, 168 S. W. 933, Ann. Cas. 19160, 375), it is said:

"It will be noticed that the petition fails to specifically allege impotency, neither does it contain an allegation of a general nature which might be said to embrace within its terms the condition of impotency."

The opinion then goes on to point out that in the petition in that case the defendant could not help the situation—

"by filing a motion to make more specific, because the petition contains no general terms which would, by being made more specific, uncover the hidden secret that impotency resulted from the injury."

Applying that principle to this case, to simply allege that the bones surrounding the pelvic cavity were broken and crushed, and. the organs within the cavity crushed, is a description of the facts constituting the injury. It would not necessarily follow from that statement of the injury that the woman would thereafter be unable to give birth to a child; but...