Pinkston v. McClanahan
| Decision Date | 13 November 1961 |
| Docket Number | No. 2,No. 48117,48117,2 |
| Citation | 350 S.W.2d 724 |
| Parties | Leona PINKSTON, Appellant, v. Patrick McCLANAHAN and Robert McClanahan, Respondents |
| Court | Missouri Supreme Court |
Thomas A. Mathews, Farmington, Roberts & Roberts, by J. Richard Roberts, Farmington, for appellant.
Dearing, Richeson & Weier, H. L. C. Weier, Hillsboro, for defendants-respondents Patrick McClanahan and Robert McClanahan.
Action by Leona Pinkston to recover $25,000 damages for personal injuries sustained by her when struck by an automobile owned by defendant Robert McClanahan and driven by his 17-year-old son Patrick, the other defendant. The jury returned a verdict (signed by ten members) finding the issues in favor of plaintiff and against both defendants, and assessing plaintiff's damages in the sum of $2,000. Neither defendant sought a new trial, but both joined in filing a timely motion to have the verdict (and the judgment entered thereon) set aside, and to have judgment entered in accordance with their motion for a directed verdict, as offered at the close of all the evidence. Plaintiff filed a motion for new trial (but asking that the same be restricted to the issue of damages alone) alleging as the single ground therefor, the following: 'Under the law and the evidence said verdict is inadequate.' Both motions were overruled, and plaintiff alone has appealed.
This court has jurisdiction of the appeal because in this instance the 'amount in dispute, exclusive of costs' is represented by the difference between the amount sued for and the sum awarded, and hence exceeds $15,000. Art. V, Sec. 3, Const. of Mo., V.A.M.S., and Sec. 477.040, RSMo 1959, V.A.M.S.; Hemminghaus v. Ferguson, 358 Mo. 476, 481, 215 S.W.2d 481, 481; Conner v. Neiswender, 360 Mo. 1074, 1076, 232 S.W.2d 469, 470; Combs v. Combs, (Mo.) 284 S.W.2d 423, 424
The single issue presented on this appeal is that of the inadequacy of the amount of the verdict, as raised in plaintiff's motion for a new trial. The facts going to the question of liability are therefore not material, and will not be stated further than to say that the casualty out of which this action arose was 'an automobile-pedestrian collision' occurring on Division Street in Bonne Terre during the noon hour on May 15, 1958. The defendantdriver was called as a witness for plaintiff, and he testified directly to the fact that the car he was driving struck plaintiff as she was walking in the street carrying a sack of groceries.
As a result of the collision, plaintiff was knocked down and severely injured. She was taken by ambulance to the Bonne Terre Hospital where she was attended by her physician, Homer Appleberry, M.D., and X-rays were taken. Later that day she was removed to Barnes Hospital in St. Louis where she remained about two weeks, or until May 31, on which day she was taken by ambulance to the Thomas Dell Nursing Home at Farmington. She was confined in the latter institution as a patient until discharged on or about Jan. 3, 1959.
Dr. Appleberry testified as to plaintiff's condition and the nature of her injuries when he saw her at the Bonne Terre Hospital on the day she was injured, as follows: That 'she had a lot of pain'; that she had multiple bruises and cuts on her face; that she had multiple fractures--one of her left leg, and she had a fractured pelvis, and a fractured right leg and knee. On arrival at Barnes Hospital about 8 p. m., plaintiff was attended by Dr. Herbert Spady, an orthopedist, who testified in her behalf by deposition. His examination disclosed the following: She was an elderly, white woman, markedly obese, and was suffering from an acute injury. She had a laceration over the right eye with some crepitus over the nose--'crepitus' meaning, 'Oh, kind of a crunchy feeling like you might feel if you squeezed a bag of popcorn.' There was pain to pressure over the area of the right pubic bone; there was pain on motion of the right knee, and there was swelling and blueness or bruised look around the right knee. There was also a bruise of the left knee, and there was a false motion, that is, motion in the mid-portion of the thigh and pain in the left thigh, whereas there shouldn't have been any motion in any of the mid-portion of the thigh. Following the examination, she was put in traction to relieve her pain and to keep the bones in line so they wouldn't damage tissue pending surgery, which was performed the next afternoon. This witness identified numerous X-ray photographs of plaintiff, among which was one showing a spiral fracture of the midportion of the shaft of the left femur; he assisted in performing an operation for that fracture, which he described as follows:
Dr. Spady further testified that unless there is another operation the nail will remain in place the rest of the patient's life. Interpreting other X-rays taken following the surgery just mentioned, the witness stated one of the photographs showed 'the femoral nail in place in the canal of the femur bridging the fracture site and holding it in good position and alignment'; that another showed 'the fracture site with the nail bridging across it with formation of callus at the fracture site.' Not having examined plaintiff since, the witness was unable to give an opinion as to whether the fact that the nail is through the upper part of the femur would affect the use of the joint where the femur joins onto the body. He further stated that a nail in the position of this particular nail (the upper end sticking out of the bone into the adjacent soft tissue) may cause pain, but it does not necessarily do so.
He also said the X-rays revealed and that he found fractures of both the tibia and the fibula of the right leg, that of the tibia being just below the knee and extending into the knee joint and associated fracture about four inches down on the fibula. (This was placed in a cast extending from the groin to the toes.) The same X-rays showed considerable joint disease which, in the opinion of the witness, antedated the trauma. X-rays of the right knee taken Nov. 14, 1958, showed no change in the degenerate condition previously found in the knee joint, but did show 'considerable healing of the fractures of the knee with considerable new bone formation around the fractures.' The witness could not tell whether there was any stiffness in that knee joint. In addition, plaintiff had a fracture of the right pubis and a fracture of the right ischium, the pubis and ischium being portions of the pelvic bone. X-rays taken Aug. 29, 1958, showed these fractures healed. From his examination, this witness was of the opinion that plaintiff had a fractured nose (but for which no treatment was given). His other findings were that she had a small laceration of the face and multiple bruises, one in the area of the left knee, and another on the right knee in the area of the fracture. The patient was conscious on arrival at the hospital, but in pain. During the first three or four days the patient complained of paid and nausea and she vomited a good deal. She had pains in her chest, and the witness suspected she might have a fractured rib, but no X-rays were taken of the chest.
Cross-examination developed that witness did not find any injury to plaintiff's spine, but that X-rays taken on the day she entered the hospital showed extensive osteoarthritic changes in the lumbar spine, which condition had existed for years, and that it was the feeling of the witness that it would be expected that this condition would cause more pain in a large, obese woman such as plaintiff than in a thinner patient, although he could not say from his experience that such was true. The X-rays also showed preexisting osteoarthritic changes in both the hip and knee joints. The treatment plaintiff received was the usual and customary kind for the type of fractures involved; in fact, the technique of nailing of the femur was stated to be one of the newest and most modern methods used in the reduction of a fracture of the femur, and holding the fractured bone in place. Plaintiff's fractures healed and callus developed around them.
Dr. Appleberry did not see plaintiff from May 15, 1958, (the...
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