Murphy v. St. Joseph Railway, Light, Heat & Power Co.

• Decision Date: 24 May 1926
• Parties: JESSIE PEARL MURPHY, RESPONDENT, v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY, APPELLANT. [*]
• Court: Kansas Court of Appeals

283 S.W. 994

221 Mo.App. 670

JESSIE PEARL MURPHY, RESPONDENT, v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

May 24, 1926

Appeal from the Circuit Court of Buchanan County.--Hon. L. A Vories, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Charles H. Mayer for appellant.

Mytton & Parkinson for respondent.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action in damages for personal injury.

Defendant is a corporation, organized and existing under the laws of the State of Missouri. Together with other activities, it owns, controls and operates a street railway in the City of St. Joseph, Missouri, and as a part of said system it owns and controls tracks along Eleventh street in said city, commonly referred to as the South Park line, and owns, operates and controls street cars over said tracks.

It is not disputed that on May 27, 1924, plaintiff was a passenger for hire upon a southbound street car operated by defendant over its said line. It is shown that the line runs south on Eleventh street, crossing Sycamore street at right angles. On the occasion in question, the car upon which plaintiff was riding, at about six o'clock P. M., stopped at Sycamore street and plaintiff started to alight therefrom. As she was so alighting, while descending from the said car and before she had released the handhold at the front end of the car, the operator of the car closed, or permitted to be closed, the front door upon plaintiff's left forearm.

The testimony in plaintiff's behalf tends to show that as she was alighting from the car the step thereof was jerked from under her foot; that the act of closing the car door and that of folding the step were both done by one movement of a lever operated by the motorman; that the door was closed on her left arm between the wrist and the shoulder, thus holding her until the door could be opened; that while plaintiff was in this position the car started with a jerk, throwing plaintiff against said car and injuring her left shoulder and breast; that the car then was stopped, the motorman opened the door, her arm was released and she sank to the payment; that she arose, gave the motorman her name and address and walked a block and a half to her home; that Dr. Kearby was called and came the following morning when he examined and bandaged her; that her left arm and breast were discolored and she was confined to her bed for two weeks and to her home for a month by reason of said injury; that her shoulder was dislocated, her back wrenched, breast bruised and neck injured; that she suffered headaches and irregular menstruation periods; that a Dr. McGlothian took an X-ray picture of her left shoulder and a Dr. Owens was appointed by the court to make an examination of her.

There is no material dispute as to the actual facts to be considered on this appeal, but there is a contested issue as to the extent of plaintiff's injury, especially as to the pathological results thereof. Dr. H. D. Kearby, plaintiff's attending physician, testified that he reduced the dislocation of the left shoulder; that plaintiff was nervous and that the X-ray picture disclosed there was no fracture; that by digital manipulation and from the history of the case given him by plaintiff, he determined that plaintiff had cancer of the left breast; that he made no other test to verify this diagnosis.

The question as to whether or not plaintiff has cancer of the breast, and if so, whether it is a result of the injury complained of is the principal issue on this appeal.

The record shows the testimony on behalf of defendant was to the effect that the door and steps of the car worked together automatically; that the door would close simultaneously with the raising of the step; that the car did not move while plaintiff was alighting, that the car did not jerk; that plaintiff did not fall; that on request, she wrote her name and address on a card for the motorman after she had alighted.

Dr. J. F. Owens who was appointed by the court, as above stated, testified that he examined plaintiff on January 8, 1925, and found no lumps in her breast; that the glands of the breast are nodular and that he discovered nothing in plaintiff's breast indicating any injury; that plaintiff said her shoulder pained her, but that the symptoms were entirely suggestive and he was compelled to accept plaintiff's word for it; that he could find nothing to indicate an injury had been sustained by her. He further stated that it is impossible to make a positive diagnosis of a cancer of the breast by manipulation alone; that the proper way is to view a cross section of the suspected tissue under a microscope; that once a cancer nodule develops in the breast, it remains there constantly unless removed; that trauma to the breast will sometimes produce suitable conditions for development of the cancer germ; that there are causes of cancer other than trauma; that pain rarely accompanies the early stages of cancer and that attention is first attracted to the nodule, and if the nodule is cancerous, pain will follow; that the only nodules he found in plaintiff's breast are milk glands and that he found no cancerous nodules there.

Dr. McGlothlan, testifying for defendant, stated he took an X-ray photograph of plaintiff's left shoulder on June 4, 1924, and that if plaintiff sustained an injury on May 27, 1924, resulting in cancerous nodules of the breast, the same would have been easily discoverable in January, 1925, the date of Dr. Owens' examination.

The amended petition, upon which the cause was tried, alleges as follows in respect to the alleged injury:

"That said injury is likely to produce and is producing in plaintiff's left breast and chest a cancer or tumor or mal growth; that she suffered a permanent and severe shock to her nervous system; that as a result of her injuries her menstruation has been made more painful and irregular;" etc.

The answer is a general denial, and upon the issues thus made, the cause went to trial to a jury, resulting in a verdict and judgment for plaintiff in the sum of $ 3500. Motions for a new trial and in arrest were unavailing and defendant appeals.

The errors assigned are as follows: (1) The court erred in permitting Dr. Kearby to testify that plaintiff has cancer as a result of the injury complained of, because such testimony of the witness was founded upon the history of the case, was hearsay and was inadmissible; that the admission in evidence of such testimony was prejudicial error; (2) that the court erred in refusing defendant's instruction A-1 which sought to instruct the jury that there was no evidence that plaintiff has a cancer as a result of the alleged injury; (3) that the verdict is excessive, and (4) that the court erred in overruling the motion for a new trial.

Defendant directs its attention chiefly to the action of the court in receiving the testimony of Dr. Kearby relative to the basis of his diagnosis that plaintiff had cancer as a result of the alleged injury.

As stated above, Dr. Kearby was plaintiff's attending physician, and on direct examination during the progress of the trial, he testified, as follows:

"Q. Doctor, what has developed, first with reference to the breast, I will take that. A. At this time she had considerable pain in the breast and a few small nodules.

"Q. Have you watched the breast and had it under your care since that time? A. Yes, I have.

"Q. Tell the jury what is the trouble with her breast. A. I think at this time she is beginning carcinoma of the breast.

"Q. What do you mean by carcinoma? A. That is a name for cancer one variety.

"Q. I wish you would state whether or not a woman who was getting off a car and had her arm caught in the car door and was on the car step and she received a blow, moderate but sufficient to cause black and blue places, without any break in the skin, anything of that kind, just the single blow, whether or not that...