Powelson v. Chicago, M. & St. P. Ry. Co

• Decision Date: 10 June 1924
• Docket Number: 24098
• Parties: POWELSON v. CHICAGO, M. & ST. P. RY. CO
• Court: Missouri Supreme Court

263 S.W. 149

POWELSON v. CHICAGO, M. & ST. P. RY. CO

No. 24098

Supreme Court of Missouri, First Division

June 10, 1924

Fred S Hudson, of Kansas City, for appellant.

Pross T. Cross, of Lathrop, and Davis & Ashby, of Chillicothe for respondent.

OPINION

SMALL C.

Appeal from the circuit court of Caldwell county. Suit for personal injury.

Plaintiff claims he was ruptured when thrown to the ground by a defective track jack which he was using as an employee of defendant, while working on defendant's railroad track. While so employed plaintiff was engaged in interstate service, and the suit is based on the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). The petition alleges that on June 16, 1920, defendant negligently permitted said track jack to be and remain defective and out of repair, in that the ratchet, gear, and lifting part thereof was old, worn, and defective, by reason whereof, when plaintiff, in the usual course of his employment, was using same in lifting defendant's main track under the orders of defendant's foreman in charge of said work, said jack gave way and slipped, and the dog or catch therein failed to hold, and thereby caused the weight of the whole load to drop downward just as plaintiff was in the act of lifting upward, and that thereby plaintiff was thrown to the ground suddenly, causing him great and unexpected strain and injury, whereby plaintiff sustained a serious and permanent rupture or hernia. He prays judgment for $ 25,000.

During the trial the court permitted the petition to be amended so as to state the date of the injury to have been on the ___ day of June, instead of the 16th.

The answer contained a general denial and plea of contributory negligence and assumption of risk, all of which was put in issue by the reply. The jury found a verdict for plaintiff for $ 12,500, on which judgment was entered, and defendant appealed.

II. The errors alleged in this court by appellant are that the time when plaintiff was injured, whether on June 4th or June 16th, or at another time, is left to conjecture by the testimony, and that defendant refused to submit to medical and surgical treatment, whereas, had he done so, he could have been easily cured, and that therefore its demurrers to the evidence should have been sustained; also that the verdict is so grossly excessive and shocking to the judicial mind that a remittitur would not cure the defect, and the case should be reversed and remanded.

First, as to the date of the injury: The plaintiff testified as follows:

'Cross-examination. Q. Now, when did this accident you are claiming happened to you -- when did that happen? A. Well, sir, it happened some time in June, along -- oh, up about the tenth, or somewhere along there, I would judge, and maybe, a few days later, up in as late as the 15th.'

The witness Barnett testified:

'Q. I will ask you if you know and recall a time and an incident when Peter Powelson got hurt? A. I remember it; yes, sir. Q. About when was that? In the month of June, you say? A. Something like that time. Q. And about what part of June, to your best recollection, now? A. Well, about between the fourth and fifth; something about like that. Q. Somewhere along -- that is the best you can recall it? A. Yes, sir.'

We think the petition, especially as amended, and the plaintiff's evidence, sufficiently show that the date of the injury to take the case to the jury.

Second, as to the evidence of plaintiff's refusal to undergo necessary surgical operation:

The only physician who treated plaintiff prior to the trial was Dr. Roney, the railway company's doctor, and he testified as a witness for defendant as follows:

'Plaintiff came to him for treatment June 17, 1920. Q. All right; what did you -- did you tell him or prescribe for him or advise him, or what? A. Yes; we discussed the matter. I told him that there was two procedures: That he could wear a truss, or he could be operated upon for the hernia. Q. And you found an inguinal hernia? A. Yes, sir. Q. And you told him then -- you said that there were two things that he could do? A. Yes, sir. Q. Either be operated on or -- A. Wear a truss. I advised him strongly to wear a truss till he was operated on, anyhow. * * * Q. Well, what advice did you give him after that in regard to this? A. Well, to wear a truss; to wear a truss anyhow, and be operated on if he so decided. I advised him that either one of them would be good; a lot of men wear trusses all their lives; that he could if he did not want an operation. That he could wear a truss,' but it would be all right for him to be operated on; it would be safe.

He further testified that, while the risk of an operation is slight as a matter of fact, it is so great to the lay mind that four-fifths of sufferers from hernia never have an operation, but wear trusses. On September 3 he examined him and strongly advised him to wear a truss, but when he first saw plaintiff he would have preferred an operation, and so advised plaintiff; had quite a discussion with him, but could not remember what was said.

Dr. Eads, a witness for plaintiff, testified that the chances were an operation would have cured plaintiff if done at the time of his injury, but two years afterwards (or the time of the trial) was too late, but that the operation might have failed had it been performed at the time plaintiff was injured. Dr. Roney also said that it was possible an operation might be a failure, and if it failed 'the poor fellow might be dead -- sure thing.' Dr. Hayden, a witness for defendant, testified that the operation for hernia was simple, safe, and was 100 per cent. successful. But he testified on cross-examination that he, himself, had been afflicted with hernia for five years, and had never had an operation, but wore a truss, although he could have had the services of surgeons free of charge. The only evidence that plaintiff was positively invited by defendant and refused to be operated upon for hernia was that of defendant's witness, its claim agent, who was not a physician.

We think the general law on this subject is well stated in McNamara v. Railway, 133 Mo.App. loc. cit. 651, 114 S.W. 52, as follows:

'The expert witnesses say that by cutting out the enlarged veins in all likelihood a permanent cure may be effected, but add that the operation requires the use of an anesthetic, and therefore is more or less dangerous. We do not think plaintiff should be criticized and punished on account of his failure to undergo a surgical operation. He should be accorded the right to choose between suffering from the discase all his life, or taking the risk of an unsuccessful outcome of a serious surgical operation. Certai...