McAuliffe v. United Rys. Co.

• Decision Date: 02 January 1922
• Docket Number: No. 16768.,16768.
• Citation: 237 S.W. 129
• Parties: McAULIFFE v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

237 S.W. 129

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

No. 16768.

St. Louis Court of Appeals. Missouri.

January 2, 1922.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Suit by Catherine McAuliffe against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Chas. W. Bates, T. E. Francis, and G. T. Priest, all of St. Louis, for appellant.

Kelley, Starke & Moser, of St. Louis, for respondent.

DAUES, J.

Plaintiff sued the defendant company in the circuit court of St. Louis for personal injuries alleged to have been sustained by her while a passenger on one of defendant's street cars. The petition alleges that plaintiff was injured on December 1, 1917, in a collision between the car upon which she was riding and another car, all being operated by the defendant in the city of St. Louis; that the negligence of the defendant caused the collision between the two cars; and that her injuries resulted "from said collision. The answer is a general denial. The trial resulted in a verdict for plaintiff in the sum of $7,500. Defendant appealed.

It appears that plaintiff, then a young lady about 21 years of age, at about 8 o'clock in the morning on said date, took passage on one of defendant's Hodiamont cars. As this car approached Pendleton avenue, it collided with another car then taking on air on the same track. The morning was very foggy, so that it was difficult to see beyond a very short distance. Plaintiff, just prior to the accident, was standing in the aisle of the car, about three seats from the front, holding onto the back of one of the seats. She was looking towards the front of the car, or east. She testified that she did not see the car in front of her until the time of the collision. There was nobody between her and the motorman of the car on which she was riding. She testified that as a result of the impact she was thrown down, and that she hit something with her chest, rendering her unconscious; that when she revived she was lying on a seat near an open window, but that she could not recall where she was. She also testified that she remembered that she had been hit in the head "pretty hard." However, she alighted from the car at Sixth street, and was standing at the intersection of this street, but said she felt "pretty dizzy," and that a man who got off of the car with her asked her if she was all right, and she said "Yes," but that she did not go to work that morning, returning home on a west-bound car from the place where she had alighted; that in returning home on the car she felt better, but that black specks appeared in front of her eyes, so that she could hardly see, and that the back of her head pained her, and that she then felt pains down her back and side; that she went to bed on arriving home, and on the following day she noticed some bruises around her hips and back, which remained for several days; that on the morning of the accident she was in the second day of her menstruation, which ceased immediately following the accident.

Plaintiff testified that she remained in bed for three days following the accident, and thereafter went to her place of employment and tried to work off and on for about two weeks; that a few days after the accident she developed fainting spells; that since the accident her menstrual periods have become irregular and painful; that she has lost weight, and suffers from nervousness and sleeplessness, and has been unable to do any work. Plaintiff said nothing to the car crew about her fall or her injuries. No other passengers on the car claimed to have been shaken up or injured by the collision, nor was the collision of such intensity as to have any perceptible effect upon them, except Mrs. Martha Cord, who testified on behalf of plaintiff that she was an acquaintance of the plaintiff; that she walked to the front of the car, and found that plaintiff had fainted; that plaintiff was then seated in one of the seats of the car by an open window; that she sat next to plaintiff until she (the witness) left the car at Jefferson avenue; that she did not notice whether either the motorman or conductor asked plaintiff any questions; that the plaintiff revived from her faint within two or three minutes, and that no bruises were visible at that time.

The proof adduced through medical testimony on behalf of plaintiff was to the effect that she was suffering from functional neurosis and photophobia; that she was hysterical, suffered headaches, and had dizzy spells and female indisposition; that there were no bones broken or ligaments torn, and that she was organically sound. Dr. Johns, superintendent of the City Sanitarium, appointed by the court to make an examination of the plaintiff a few days prior to the trial, testified that he found nothing objectively indicative of organic disease; that she had symptoms of nervous trouble, and that his prognosis of the case was favorable.

The motorman of the car testified on behalf of defendant that, after having applied the brakes of his car, the rails being slippery, his car slid into the car ahead of him, and that the only resultant damage was the breaking of the glass of the headlight on the front dashboard and bending the metal fenders of his car; that he went back into the car, but was unable to discover anybody who appeared to be or claimed to have been hurt or injured.

Appellant presents four assignments of error: That the court erred in admitting certain testimony given by Dr. McAuliffe on behalf of the plaintiff; that the court erred in giving plaintiff's instruction No. 1; that the verdict is excessive; and, finally, that the court erred in refusing to give defendant's several instructions withdrawing special damages pleaded by plaintiff, of which it is said there was no proof.

The first insistence, which seems to be the chief controversy in the case, involves the following portion of the record, to wit:

"Q. Doctor, what, in your opinion, from the examination you made of her, and what you saw, and the developments that have occurred since this injury, caused this menstrual trouble?

"Mr. Priest: Object, as invading the province of the jury.

"The Court: I think he may answer the question. (To which action and ruling of the court, in overruling the said objection, defendant, by its counsel, then and there duly excepted, and still excepts.)

"The Witness: State the question again.

"Mr. Kelley: Q. From the examination you have made, and the various treatments, and the observations you have made, and the conditions that have developed since the accident, what, in your opinion, caused this menstrual trouble? A. The accident indirectly causing the nervous condition, which influenced the menstrual condition."

Counsel for appellant insists that this testimony...