Missouri Pac. Transp. Co. v. Kinney, No. 4-5685.

• Court: Supreme Court of Arkansas
• Writing for the Court: Holt
• Citation: 135 S.W.2d 56
• Parties: MISSOURI PAC. TRANSP. CO. et al. v. KINNEY.
• Docket Number: No. 4-5685.
• Decision Date: 18 December 1939

Page 56

135 S.W.2d 56 MISSOURI PAC. TRANSP. CO. et al.
v.
KINNEY. No. 4-5685. Supreme Court of Arkansas. December 18, 1939. Rehearing Denied January 22, 1940.

Appeal from Circuit Court, Clark County; Dexter Bush, Judge.

Action to recover damages for injuries, alleged to have been sustained on a motorbus, by Ralph Kinney against the Missouri Pacific Transportation Company and J. H. Rampey. From a judgment for the plaintiff, the defendants appeal.

Judgment affirmed on condition that plaintiff agree to remit part of damages awarded.

Huie & Huie, of Arkadelphia, and House, Moses & Holmes, of Little Rock, for appellants.

Hugh Gordon Holcomb, Jr., of Little Rock, James Robertson, of Wynne, and J. H. Lookadoo, of Arkadelphia, for appellee.

HOLT, Justice.

Appellants bring this appeal from a judgment of the Clark circuit court on a jury's verdict, in the sum of $8,000, in favor of appellee, for injuries alleged to have been sustained by him while a passenger on a motor bus of appellant, Missouri Pacific Transportation Company.

This record reflects, according to appellee's testimony, that he, Ralph Kinney, at about five o'clock on the afternoon of July 1, 1938, boarded appellants' bus at Brinkley, Arkansas. He walked down the aisle, which was about fourteen inches wide, toward the rear looking for a seat. As he did so, the bus driver, J. H. Rampey, one of the appellants, followed close behind him within about two feet, carrying a suitcase in front of him at an angle of about forty degrees, and just as appellee was in the act of taking a seat the bus driver attempted to lift and swing the grip up into a rack on the side of the bus. In doing so, the grip, which was about twenty-four inches long, struck the rear part of the right arm of appellee just above the elbow, bruising the arm and causing an injury to the ulnar nerve.

A Mr. Crawford, witness for appellee, testified that he had gone to the bus station at the time appellee was injured to confer with appellee on a matter of business. He saw appellee board the bus, walk down the aisle toward the rear and just as appellee turned to take a seat he saw the bus driver strike appellee's elbow in the manner as described by appellee. "A. Yes, he started to throw it up on the rack and it struck Mr. Kinney on the right arm — somewhere about the elbow". This witness was standing on the curb within a few feet of the bus and saw him clearly through the window.

On the morning following the injury, July 2, appellee was examined by Dr. Stewart, a physician in Wynne, who testified that upon examination he found appellee's elbow discolored and bruised. He X-rayed the arm but found no fracture but did find the ulnar nerve bruised. He put appellee's arm in a sling and used antiseptic treatment to draw the soreness and swelling out of the arm. He treated appellee at different times up until the day of the trial, and

"Q. Taking into consideration the time he received the injury, the first day of July, 1938, and the condition it is in now, in your opinion, is that injury and condition to this arm permanent? A. It looks mighty badly like it.

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"Q. It looks like it is a permanent injury? A. Yes. Of course, there is a chance that it might improve, but it had not improved in several months. * * * I am not a nerve specialist or a bone specialist and I don't pose as one."

Dr. F. W. Carruthers, a nerve and bone specialist of Little Rock, is the principal witness relied upon by appellee as to the nature and extent of his alleged injury, and he testified that appellee came to him for treatment and that he gave him a thorough examination with the following findings: "A. * * * This examination revealed that the hand had a reddish, bluish appearance and the tactile examination for pains demonstrated that there was an area of anathesia following the course of the ulnar nerve over its distribution of the lateral aspects of the arm down to the ring and little fingers. There is no motor disturbances to this nerve. My opinion is that this is a traumatic neuritis and I advised him to have an exploratory operation in order to free this nerve from around its bed of adhesions and where he sustained the blow to a bed of soft tissue for the nerve."

Dr. Carruthers operated on September 27th and "I found scar tissue covering over the nerve where it passes through the area of the elbow overlying the humerus. There was definitely a path of adhesions which was where I freed the nerve and lifted it up and placed it in a soft bed by transplantation of the soft tissue in the bottom bed. The wound closed without drainage and the arm was immobilized. Since the operation, Mr. Kinney came to my office for several months using physio-therapy treatments.

"Q. Doctor, what effect did the injury you found to this ulnar nerve in his right arm have on his arm? A. This scar tissue that is found binding the nerve down could have produced both motor and sensory disturbances, because the ulnar nerve is both a motor and sensory nerve, but tests with an electric machine and by nerve degeneration, it responded to stimilae of electricity, which showed motor functions. This scar tissue was definitely binding the nerve; it evidently only involved the sensory side of the nerve. * * * There is more or less of what we call a sympathetic disturbance that naturally goes along with that and that would cause impairment in the motor side of the nerve. That, of course, is mental because of the disturbance of the sensory nerve itself."

Dr. Carruthers further testified:

"Q. He had no injury except to the ulnar nerve? A. That is all I found. * *

"Q. But the nerve does not stick to the sheath, does it? A. You mean to the nerve filament?

"Q. That's right. A. No, they are not adhered to the sheath. * * *

"Q. Where was the scar tissue with respect to the sheath? A. Right on top of it.

"Q. And what you did was to take it off? A. Yes, sir. * * *

"Q. That sheath wasn't broken, was it? A. No.

"Q. And the nerve was not broken? A. No.

"Q. And the motor nerve was not damaged? A. No, I tested that out. * * *

"Q. There wasn't anything wrong with any of the nerves except the ulnar nerve, was there? A...