Nitchman v. United Rys. Co. of St. Louis

• Decision Date: 07 May 1918
• Docket Number: No. 15038.,15038.
• Parties: NITCHMAN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

203 S.W. 491

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

No. 15038.

St. Louis Court of Appeals. Missouri.

May 7, 1918.

Rehearing Denied May 22, 1918.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

"Not to be officially published."

Action by Nellie Nitchman against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

T. E. Francis and Chauncey H. Clarke, both of St. Louis, for appellant. Earl M. Pirkey, of St. Louis, for respondent.

BECKER, J.

This appeal is prosecuted from a judgment for $2,200 rendered in favor of plaintiff and against defendant in an action for personal injuries.

The petition alleges that plaintiff was injured while in the act of alighting from a street car owned and operated by the defendant, by reason of the negligent premature starting of the car and the negligence of the defendant in permitting ice to remain on the step of the car which caused plaintiff to slip and fall. The answer is a general denial.

It is assigned as error that the court admitted evidence over defendant's objection thereto, that appendicitis resulted from the injuries alleged to have been sustained by plaintiff, for the reason that there was no allegation of such injury in the petition. The record discloses that the following questions were asked of, and answers given by, a physician who was a witness for plaintiff as follows:

"Q. Did you ever treat this woman here (meaning plaintiff)? A. Yes, sir. Q. How long? A. Since last September, off and on. Q. Just tell what you found when you examined her in September last. A. Well, upon examination I found on the right side, over the right tube, and also the appendix were affected, both. Q. How were they affected? A. She had a great deal of pain; had temperature and still has temperature. Q. Did you find anything which could be a cause for that condition? A. Well, there are many things that might be a cause for the condition, especially with the appendix. Q. What could cause that, doctor, that condition you found? A. With the appendix? Q. Yes; the entire condition you have mentioned. Mr. Blodgett (counsel for defendant): Just a moment. I do not think there is any allegation of that, your honor; object to it on that ground.

"Mr. Pirkey (counsel for plaintiff): Where is this appendix, doctor? A. It is on the right side. Q. Where is it with reference to the abdomen and pelvic region? A. It is what we call McBurney's point, between the crest of the ilium and the tubes. Q. Is that near the pelvic region? A. Yes, sir; it is above the pelvic—right in the pelvis to the center right a little. Q. Of that region? A. Yes, sir.

"The Court: Go ahead; that is covered by the allegation.

"Mr. Blodgett. I submit a matter of injury to an organ of that kind is a matter of special damage, and would have to be alleged; and I object to it on that ground."

"The Court: Objection overruled."

To which ruling the defendant by its counsel then and there duly excepted.

It will be noted the witness was permitted to testify without objection that upon examination he had found the plaintiff's appendix was affected, and that plaintiff had a great deal of pain and had temperature, and that there were many things which might be the cause of her condition, especially with reference to the appendix. The objection, therefore, so far as this testimony was concerned came too late. Birmingham Drainage Dist. v. C., M. & St. P. Ry. Co., 266 Mo. 60, loc. cit. 71, 178 S. W. 893. No motion was made to strike out the testimony against which the objection had been leveled, nor did defendant file an affidavit of surprise, but stood solely upon the objection interposed after the above said testimony had already been admitted without objection. This assignment of error we rule against the appellant.

But even had the defendant interposed a timely objection the court would properly have overruled it, in view of the fact that the plaintiff's petition alleges that:

By reason of her fall "her right ankle was sprained and bruised, and her left hip was bruised and strained, and her back and abdomen and head and arms and legs were bruised, and her back was wrenched and twisted, and she was caused to sustain great nervous injuries and shock; that by her injuries so sustained plaintiff has suffered, and will suffer, great pain of body and mind, and she was caused to suffer a miscarriage, and prematurely give birth on or about February 24, 1914, and she is permanently affected with pain in...