Missouri Pacific Transportation Co. v. Kinney

• Decision Date: 18 December 1939
• Docket Number: 4-5685
• Citation: 135 S.W.2d 56,199 Ark. 512
• Parties: MISSOURI PACIFIC TRANSPORTATION COMPANY v. KINNEY
• Court: Arkansas Supreme Court

135 S.W.2d 56

199 Ark. 512

MISSOURI PACIFIC TRANSPORTATION COMPANY v. KINNEY

4-5685

Supreme Court of Arkansas

December 18, 1939

Appeal from Clark Circuit Court; Dexter Bush, Judge; affirmed if remittitur is entered.

Judgment reversed and cause remanded.

Huie & Huie and House, Moses & Holmes, for appellant.

Hugh Gordon Holcomb, Jr., James Robertson and J. H Lookadoo, for appellee.

OPINION

HOLT, J.

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. 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 anaesthesia 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 physical-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 stimuli 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. Yes. Q. And there wasn't anything wrong with that except the scar tissue and you removed the scar tissue? A. Yes. . . . Q. It is not an unusual operation? A. It is not an unusual operation, no. . . . Q. Have you observed whether or not Mr. Kinney has lost any weight? A. No, I couldn't say I have observed that. . . . Q. Have you examined him to know what his nervous conditions are? A. No, I have not. . . . Q. Now, Doctor, is he anything like well yet? A. No, sir. Q. Could you tell with any degree of accuracy when he would be well? A. No, I couldn't state with any degree of accuracy when he would be. Q. Or whether he ever will be well? A. No, sir."

Appellee Kinney further testified: "Q. What did he (Dr. Stewart) do for your arm? A. He had me go home and put hot packs on it. . . . Dr. Stewart sent me to Dr. Carruthers in Little Rock . . . sometime in September. . . . Q. Tell the jury whether or not it is better now than it was four or five months ago? A. It is not. The feeling in the bottom part of my hand plumb numb and dead before the operation--it has more feeling now, but no more use. Q. Can you use it at all? A. I can use it some, yes, sir. . . . Q. You don't claim and haven't claimed at any time that you had anything wrong with your arm except that you had a tingling feeling in your arm and pain in the forearm and hand? A. There is quite a bit of numbness there. Q. The numbness was just numbness that comes from striking your funny bone, wasn't it? A. I don't know. Q. You have had that many times? A. Not like this. Part of my arm was just dead and didn't have any feeling in it. Q. For how long? A. I would say two months. Q. Two months? A. Yes, sir. Q. Had the numbness gotten over with at the time you saw Dr. Carruthers? A. No, it was continually getting worse all the time. Q. And when he operated on your arm, it went away? A. No, it hasn't all went away, but it has more feeling than it did. Q. In other words, as far as the numbness is concerned, it is getting better? A. You can feel those fingers (indicating) and before, you couldn't feel at all."

Appellee Kinney also testified as to...