Paul v. Dunham

• Decision Date: 26 May 1919
• Docket Number: No. 13255.,13255.
• Parties: PAUL v. DUNHAM et al.
• Court: Missouri Court of Appeals

214 S.W. 263

PAUL v. DUNHAM et al.

No. 13255.

Kansas City Court of Appeals. Missouri.

May 26, 1919.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Thomas Kelley Paul against R. J. Dunham and others, receivers of the Metropolitan Street Railway Company. Judgment for plaintiff, and defendants appeal. Affirmed.

R. J. Higgins, of Kansas City, Kan., and Roscoe P. Conkling, Charles L. Carr, and Clyde Taylor, all of Kansas City, Mo., for appellants.

Brewster, Kelly, Brewster & Buchholz, of Kansas City, Mo., for respondent.

BLAND, J.

Plaintiff recovered a verdict and judgment in the sum of $6,000 for personal injuries claimed to have been sustained by him as the result of falling from an eastbound Vine Street car, being operated on 19th street at Grand avenue, in Kansas City, Mo.

The negligence charged in the petition was that the street car stopped on the west side of Grand avenue at the usual and regular stopping place for faking on and discharging passengers, and that, while the car was stationary at that point, plaintiff attempted to board the same for the purpose of becoming a passenger thereon. While plaintiff was in the act of boarding the car, but before he had a reasonably sufficient time so "to do, "said car, through the negligence of the defendants, was started forward suddenly, and plaintiff was dragged by said car and thrown from said car to the pavement of the street." There was evidence sustaining the allegations of the petition and showing that plaintiff attempted to board the car by taking hold of the grabirons. Facing north, he stepped with his right foot on the step, and while in this position the car started with a violent jerk, throwing his foot off the step, his right knee striking the step, his left foot dragging the ground, his left hand coming loose, and in this position he was dragged across Grand avenue to a point a short distance beyond the east side thereof. Grand avenue was 146 feet wide. The continued forward movement of the car finally broke plaintiff's hold on the car, and he fell to the pavement, striking his head and causing a fracture of the skull and concussion of the brain. He was rendered unconscious and taken to a hospital, where he remained for 29 days, and did not regain consciousness until two weeks after the accident.

Plaintiff's instruction No. 1 told the jury that plaintiff was entitled to recover if "defendants' employés, agents, and servants in charge of and operating said car carelessly and negligently started said car forward with a sudden and violent jerk, by reason whereof * * * plaintiff was thrown with one of his knees upon the step of said car, and one of his feet and legs dragging on the pavement of the street, and plaintiff was dragged along and beside the rear vestibule of said car and upon the street while holding to the handrail of said car; and if you further find and believe from the evidence that, while plaintiff was being so dragged along and upon and beside the rear vestibule of said car, plaintiff's hands were broken loose from the handrail of said car, and plaintiff was thrown off and upon the street pavement, by reason whereof plaintiff was injured and hurt," etc. Defendants insist that this instruction was error because the petition pleads the negligent start and jerk of the car, while the instruction submits the negligent failure to stop the car, resulting in plaintiff's being dragged and hurt. We see no merit in this contention. The instruction shows that it is not subject to such a construction. See Beurskens v. Dunham, 193 S. W. 855. It is contended that the words in the latter part of the instruction, "by reason whereof," "modifies and refers back to plaintiff's falling upon the pavement, because of his hands coming loose while dragged." However, in the former part of the instruction the court instructed the jury that —

"If defendant's servants in charge of and operating said car carelessly and negligently started the ear forward with a sudden and violent jerk, by reason whereof plaintiff's feet were thrown off the step of said car," etc.

The instruction must be viewed in a common sense way, and not a strained construction put upon it. Taken as a whole, there is no question but that the instruction submits to the jury the carelessness and, negligence of the defendants in suddenly starting the car forward, resulting in plaintiff being thrown and dragged as described in the instruction and the petition.

Defendants insist that plaintiff's instruction No. 5 was erroneous for the reason that it permitted the jury to find that plaintiff's injuries were permanent, and that he might reasonably suffer pain In the future. It is contended that there is no evidence of permanent injury. The evidence was that plaintiff was a man about 50 years of age at the time of his injury, which occurred on November 8, 1915. After remaining in the hospital for 29 days, where lie suffered severe pains in his head, back, and spinal column, he went to his sister's home in Kansas City, Mo., for about 3 days when his wife took him to their home near Kingsville, Johnson county, Mo. Plaintiff's injuries consisted of a fractured skull, injury to the meninges or coverings of the brain, and a concussion of the brain, all of which resulted, in a serious injury to his nervous system from which he suffered at the time of the trial. After reaching his home at Kingsville, he was treated by a doctor until the summer of 1917. Trial was had on March 11, 1918. Prior to his injury plaintiff was engaged in farming, and his health was good. He testified that he was unable to do a day's work since the injury, although he had tried. With the assistance of others in the fall of 1917 he hauled wood that had been cut into light pieces, and was able to do other light work. At the time of the trial his spine was affected; as the result of extreme nervousness he was losing his rest and sleep; his back pained him, and he suffered from having to make urine at night, causing him to get up two or three times. At times he was depressed and had spells of crying. One witness said, "He just doesn't seem to care for anything." "He would cry, and just seemed a nervous wreck." He also at times displayed a great deal of emotion.

It is urged that there is no evidence of a permanent injury for the reason that it is claimed plaintiff's physician was not reasonably certain that his injuries were permanent. There was evidence from which the jury could find that the injury was permanent without expert medical testimony. Frazier v. St. Louis Smelting & Refining Co., 150 Mo. App. 419, 130 W. 485; Wood v. Railroad, 119 Mo. App. 78, 95 S. W. 946. However, we think there was expert testimony on the part of plaintiff's physician that the injury was permanent. Dr. Skoog, an expert on nervous diseases, testified that he had made a thorough examination of plaintiff, and found that some of his superficial reflexes were absent and others were increased; that this indicated an injury to plaintiff's nervous system and to both sides of the brain; that he found the pupils of the eye dilated, and "that condition refers to the nervous system." He found a defective optic nerve, which the physician stated is a projection of the brain. He also stated that the nerve head was a little obscure, and "some dilation of the veins which come out"; that dilation of the veins indicate disturbance of the meninges and intercranial pressure; that this was caused from concussion of the brain. When asked if the condition that he found was permanent, the doctor said:

"There is some uncertainty about it. I am inclined to think, and always have, some evidence which is probable, how much improvement might occur; still I can't say."

He was then asked:

"Taking the fact into consideration that the accident happened in 1915, and that these conditions present here now, in 1918"?

He answered:

"In view of that long interval, I would expect to find most of those symptoms permanent."

It is argued that because the doctor used the word "expect," and in view of his former testimony, he did not give it as his definite opinion that the injury was permanent, but rather that its permanency was conjectural. It is well understood that when a doctor states or testifies that he has made an examination and would "expect" a certain result, he is stating that in his opinion such a result would occur. While he first testified that there was some uncertainty about its permanency, when his attention was drawn to the fact that plaintiff's condition had existed for more than two years, he stated then that in his opinion most of the symptoms were permanent.

Plaintiff asked this same physician:

"A fracture of the skull as indicated in this fracture and injury to the meninges and to the brain, as indicated in your examination, would that have any effect ordinarily on the patient's emotions or irascibility of the person?"

This was objected to as not being within the allegations of the petition. The doctor answered, "It would." The petition alleges that "plaintiff received a fracture of the skull; a concussion of the brain, and an "injury to the membranes thereof;" that he "received a severe concussion of the spine and an injury to the back, spine, and spinal cord, and to the muscles and nerves and blood vessels connected therewith"; "that on account of said injuries he has suffered in the past, and will in the future suffer great physical pain and mental anguish. Plaintiff's nervous system has become injured, exhausted, and depleted." We have no doubt but that proof that plaintiff was unusually emotional and irascible tended to show a nervous condition such as pleaded. The doctor so testified. It would be an objective symptom of injury to his...