Partello v. Missouri Pac. Ry. Co.

• Decision Date: 30 March 1909
• Citation: 217 Mo. 645,117 S.W. 1138
• Parties: PARTELLO v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

117 S.W. 1138

217 Mo. 645

PARTELLO v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 30, 1909.

1. EVIDENCE (§ 477)—OPINION EVIDENCE— MATTERS OF OPINION—HEALTH.

A nonexpert witness may testify as to the apparent health of a person whom he has had an opportunity to observe, such testimony as a rule being confined to matters open to observation, but incapable of exact description, so that in an action for injuries by being thrown against a car seat in a collision, where no member was injured, but plaintiff complained of severe abdominal injuries and swelling, etc., nonexpert's evidence was admissible that, before the accident, she was healthy and robust, and thereafter appeared to have suffered from a violent shock, and was a nervous wreck, etc.

2. TRIAL (§ 194)—INSTRUCTIONS ON WEIGHT OF EVIDENCE—AMOUNT OF DAMAGES.

In an action for injuries to a passenger an instruction that, upon finding for plaintiff, to allow her such damages as would compensate her for bodily and mental anguish, not to exceed the sum demanded, was not erroneous as an instruction that the evidence warranted a verdict for any sum up to that amount.

3. DAMAGES (§ 95)—PERSONAL INJURIES— MEASURE OF DAMAGES.

A passenger was only entitled, in an action for personal injuries, to just and adequate compensation for her injuries, pain, and suffering, where there was no element of wantonness in the case.

4. APPEAL AND ERROR (§ 1004)—VERDICT— CONCLUSIVENESS—AMOUNT OF RECOVERY— PERSONAL INJURY ACTIONS.

The amount of damages in personal injury actions being largely in the jury's discretion, the verdict will not be disturbed unless the amount awarded is so gross as to compel the inference that it must have resulted from passion, prejudice, or bias.

5. DAMAGES (§ 130)—EVIDENCE—EXCESSIVE DAMAGES—PERSONAL INJURIES.

In a passenger's action for injuries sustained in a collision, evidence held to show that a verdict for $20,000 was so excessive as to show that it resulted from passion and prejudice, and required a new trial.

Appeal from Circuit Court, Jackson County; Edward P. Gates, Judge.

Action by Annie V. Partello against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reed, Yates, Mastin & Harvey, for appellant. Martin L. Clardy and Elijah Robinson, for appellee.

BURGESS, J.

This is an action for damages for personal injuries received by plaintiff in a collision occurring on defendant's railroad, and alleged to have been caused by the negligence of defendant, its agent, and servants. The jury trying the cause returned a verdict for $30,000 in favor of plaintiff, and judgment was rendered accordingly. Afterwards, upon the hearing of defendant's motions for a new trial and in arrest of judgment, plaintiff by attorney remitted $10,000 of said judgment. The court overruled defendant's said motions, whereupon an appeal was taken to this court.

Plaintiff is the wife of an army officer, stationed at Ft. Reno, Okl. On the 9th day of October, 1904, plaintiff, her husband, daughter, and son were passengers on one of defendant's trains going from the union depot at Kansas City to Leavenworth, Kan., and when the train was passing through the defendant's yards in Kansas City, at a point about 300 yards west of the union depot, the engine collided with the tender of another engine. A crossing switch was left open, and the engine, instead of proceeding westwardly on the main track, ran in on this cross-over track, and collided with the tender of the other engine which was backing eastwardly on another track. The pilot or cowcatcher of the passenger engine by reason of the collision was broken and the forward part of the engine damaged, and the trucks of the tender of the other engine were knocked off the track, and a large hole made in the water tank. When the collision occurred, plaintiff was thrown forward from her seat in the chair car, her face striking the back of the chair immediately in front of her, causing her nose to bleed, and she fell to the floor on her knees. Dr. A. J. McDonald, a dentist residing in Kansas City, was sitting on the opposite side of the aisle from plaintiff, and he, with Maj. Partello, plaintiff's husband, assisted her back to her seat. She was bleeding freely at the nose, and seemed to be suffering great pain and Dr. McDonald got a damp towel and bathed her face and otherwise tried to alleviate her suffering. This witness testified that the concussion between the two engines was violent, and threw him forward, but that he put his hands on the seat in front of him, and remained uninjured. He further testified that nothing intelligible was said by plaintiff in his presence after she was injured, but that she was in a semiconscious condition, and moaning practically all the time. Plaintiff was removed through the car window on a stretcher and taken to St. Joseph's Hospital; she being at the time in an unconscious condition. Describing her condition after she regained consciousness, she said: "I felt as though I was hurt in some way in my lower parts, and could not move them." Dr. Fulton and Dr. Hamel, two surgeons connected with the defendant railway company, came to see plaintiff on the day of the injury and administered strychnine, and put her womb back in place; Dr. Fulton forcing it back in place with a pack.

Miss Carrico, the nurse who waited on plaintiff at the hospital, testified that, when plaintiff came to the hospital, she was in great pain, and continually asked for something to relieve her. She saw Dr. Fulton examine plaintiff, and force back her womb by means of a pack saturated with icthyol oil. The doctors also applied antiphlogistine to the lower part of her abdomen, on the right side, which was greatly swollen, and this treatment was continued for weeks. During plaintiff's stay at the hospital she was unable to sleep without the aid of an opiate, and she suffered from nervousness and nausea. She failed in flesh, and during the first three weeks of her stay at the hospital she was out of bed once, when she was put in an invalid's chair and taken to the porch for a few minutes. After plaintiff had been at the hospital some two or three weeks, Dr. Lester Hall, who had been asked by plaintiff's husband to attend his wife, performed a minor operation on plaintiff. He found that in giving birth to her first child the perineum was lacerated, and he cut away the old scar tissue, and sewed up the lacerated perineum. At the end of five weeks, plaintiff left the hospital and was taken in a carriage to the Coates House; in Kansas City, where she remained three days, and then took a night train for home, lying down in a sleeper as soon as she entered it. Reaching Ft. Reno, she was immediately put to bed, which she was unable to leave, even with the help of assistants, for two or three months afterwards, during which time a nurse constantly attended her.

Dr. A. M. Chase, an army surgeon stationed at Ft. Reno, was called in immediately upon Mrs. Partello's arrival. He found her in a fainting condition, and gave her several hypodermic injections of strychnine, and did not leave her for hours. She was partially unconscious. Her extremities were cold and pulseless, and she was without rallying power. In appearance she was emaciated and sallow. A few days later Dr. Chase made a physical examination of plaintiff, and found the womb fixed and the patient suffering from great tenderness of the abdomen. The broad ligaments supporting the womb and the surrounding tissue he found inflamed and enlarged. There was also a swelling in the abdominal region which lasted for weeks. In his opinion this condition was due to an acute injury, a blow or concussion. He visited her three times a day for a period of about two months, and continued to visit her at intervals up to the time of testifying. He thought that the injury received by plaintiff had almost destroyed her nervous system, and that her health and vigor were permanently impaired.

Dr. J. H. Ford, assistant surgeon at Ft. Reno, testified that plaintiff before her injury was remarkably strong and robust and in excellent health. She had been accustomed as the wife of the commanding officer to attending the balls and social functions at the fort, and taking a leading part therein, and she was also fond of doing her own housework, although it was not necessary for her to do so. She had not suffered from any chronic disease or serious womb trouble. The first time Dr. Ford saw plaintiff after the infliction of the injury was on November 15, 1904, at the Coates House, after she left the hospital and just prior to her return to Ft. Reno. To him "her appearance indicated that she had undergone some violent shock. * * * She had lost greatly in weight, and was suffering from a nervous lack of strength." He further testified that her ill condition had steadily progressed, and that she was a nervous and physical wreck. He did not think it possible that she could ever be restored to health.

Dr. Jno. R. Snell, a physician living in Kansas City, made an examination of plaintiff just before the trial, and testified that he regarded Mrs. Partello as a nervous wreck, and that her ill condition was permanent.

The testimony further showed that plaintiff and her family had attended the World's Fair at St. Louis, and that the injury occurred while returning therefrom; that while in St. Louis she attended the Fair regularly, walked about a great deal, never complained of being tired, and had all the appearance of a strong and vigorous woman. According to plaintiff's own testimony, she had journeyed twice with her husband to the Philippines, where she was in the habit of taking long horseback rides, lasting for days, merely for pleasure's sake, and had also ridden horseback at Ft. Reno. A number of witnesses testified as to the difference in plaintiff's appearance and health between the time she left Ft. Reno for...