Schroeder v. Wells

• Decision Date: 29 September 1925
• Docket Number: No. 19034.,19034.
• Citation: 277 S.W. 578
• Parties: SCHROEDER v. WELLS.
• Court: Missouri Court of Appeals

277 S.W. 578

SCHROEDER v. WELLS.

No. 19034.

St. Louis Court of Appeals. Missouri.

September 29, 1925.

Rehearing Denied November 20, 1925.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Katherine Schroeder against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and Austin E. Park, all of St. Louis, for appellant.

Coffman & Jackson, of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries sustained by plaintiff while in the act of alighting from defendant's street car upon which she was a passenger. The cause was tried to a jury, there was a verdict and judgment for plaintiff in the sum of $2,500, and defendant has brought the case here by appeal.

The accident in which plaintiff received the injuries for which she sues occurred in the afternoon of September 17, 1922, at the intersection of Jefferson avenue and Howard street, in the city of St. Louis. Plaintiff was a passenger on a south-bound Jefferson avenue car. She was accompanied by two small children. As the car approached Howard street she signaled her intention to alight. She then went with her children to the rear door. The car was stopped and the door was opened at the northwest corner of Jefferson and Howard. Thereupon plaintiff attempted to alight from the car, and while she was in the act of alighting, the car started forward and caused her to fall, and she was thereby injured.

The plaintiff described the accident as follows:

"I rang the bell, and got up and walked to the rear of the car to alight. The car stopped at Howard street at the regular stopping place. The car stopped, and the door opened, and I stepped down to the step. The two children were with me; one at each side. I had one child by the hand. When I stepped down on the step, the car started forward and threw me; somehow I lost my balance and was thrown into' a sitting position on the step? and my back struck the platform of the car, and then I fell forward to the street on my face and hands."

Charles R. Minnucciane, who witnessed the accident from the sidewalk in front of his store at the northwest corner of Jefferson and Howard, testified:

"The car stopped, the rear door opened, and the plaintiff made a step to get down from the car. Before she had a chance to get off, the car gave a sudden jerk and started up and threw her in a sitting position on the platform. Then the car made a sudden stop and she fell forward to the street. The car then went forward and that was the last I saw of it. I believe she had a child in her arms, or a child alongside of her by the hand."

Mrs. Antonet Seiter, who witnessed the accident from the' front doorstep of her home on the south side of Howard street just west of Jefferson avenue, testified:

"I saw the car stop. It was crowded with passengers. They were just packed all over, in the vestibule and front. There were some even hanging on the bumper. The car `topped at the regular stopping place; that is, the northwest corner of Howard and Jefferson. After the car had stopped and the rear door was opened, I saw the plaintiff start to get off the car. She stepped down on the step and before she was off the car started. When the car started, plaintiff fell back into the vestibule, and then the car stopped, and she fell off onto the street. One of the children had got off ahead of her and the other she was still holding by the hand. It fell off with her. She never let go of it. When the car stopped the second time, it remained standing just long enough for her to fall off the step, and it went right on. They never stopped to see if she was hurt or anything. She did not fall clear back when the car started; she kind of sat down, and then the car stopped, and she tumbled down onto the street, baby and all."

The defendant produced no evidence concerning the accident. The conductor and motorman in charge of the car did not testify.

Defendant complains that the verdict is excessive. Plaintiff sustained serious and painful injuries as the result of the accident. The fifth lumbar vertebra was partially dislocated, leaving the spine in a curved condition at that region. The vertebra was tilted to the left to the extent that it reached almost to the crest of the ilium. The dislocation produced pressure on the spinal cord and the nerves emanating from it. She suffered from insomnia, restlessness, nervousness, headaches, and severe pain in the back. She tilted over to the left side when she walked. The reflexes were exaggerated. The palms of the hands perspired. There was a contrast of the pupils of the eyes. It was the opinion of her physician that her condition as just described was permanent, though some improvement might be expected under proper treatment. She was 23 years old at the time she was injured. She expended $129 for medical treatment, and was still under treatment at the time of the trial. We cannot say that the amount of the verdict is such that this court ought to interfere.

The defendant assigns error upon the refusal of the court to give his instruction withdrawing from the jury the consideration of the issue of the permanency of plaintiff's injuries in assessing her damages, on the ground that the evidence was insufficient to show that the injuries were permanent. Defendant urges in argument that, though the plaintiff's physician on direct examination gave it as his positive opinion that the injuries were permanent, this opinion was completely destroyed on cross-examination. We do not so interpret the physician's testimony. Reading his entire testimony together, we think it shows that it was his opinion that plaintiff had suffered permanent injuries. We cannot read this record, and conclude that there was no evidence of permanency in the plaintiff's injuries.

Defendant also assigns error upon the admission of the testimony of Dr. S. A. Levy concerning the plaintiff's injuries, for the reason that the only predicate for such testimony was a carbon copy of a memorandum of his examination of an X-ray negative made by him, which was lost, though he stated that his memory concerning the negative and the results of the examination was not refreshed by the carbon copy so as to give him an independent recollection thereof, and for the further reason that the witness was not shown to be an expert on the interpretation of X-ray negatives. We need not stop to discuss the merits of this assignment with respect to the competency of the testimony or the qualifications of the witness to testify. The testimony came in without objection. The motion subsequently made to exclude the testimony came too late. This is elementary.

The commissioner recommends that the judgment of the circuit court be affirmed.

PER CURIAM.

The foregoing opinion of SUTTON, C., is adopted as the opinion of the court.

The judgment of the circuit court is accordingly affirmed.

DAUES, P. J., and BECKER and NIPPER, JJ., concur.

On Motion for Rehearing.

SUTTON, C.

On motion for rehearing the defendant complains that we have overlooked a question decisive of the cause duly submitted in his original brief, to wit, that the case should be reversed because plaintiff failed to call as a witness in her behalf Dr. Pennington, who treated her shortly after her injury. Dr. Pennington visited plaintiff three times and upon such visits treated her injuries. She did not improve under his treatment, and thereupon he was discharged, and Dr. J. C. Whitley was called. Dr. Whitley made a physical examination and discovered a partial dislocation of the lumbar vertebra, as described in the opinion. He also procured Dr. S. A. Levy to make an X-ray photograph of the lumbar region. Dr. Levy made up a statement or memorandum of his findings as to the injury shown by the photograph, and forwarded the memorandum, with the photograph, to Dr. Whitley, who, on examination thereof, found that it fully confirmed his previous diagnosis with respect to the partial dislocation of the lumbar vertebra. The plaintiff continued under the treatment of Dr. Whitley up to the time of the trial. She improved under his treatment, but did not fully recover. Dr. Whitley was called as a witness for the plaintiff, and testified fully concerning her injuries and her physical condition resulting therefrom. Dr. Levy was also called as a witness by plaintiff, and testified fully with reference to the photograph made by him and the partial dislocation of the lumbar vertebra as shown thereby. He retained a carbon copy of the memorandum which he made and sent to Dr. Whitley, and he referred to this carbon copy as an aid to his memory in giving his testimony. Plaintiff submitted herself to the examination of the defendant's physicians on two occasions, once shortly after her injuries, and again the day before the trial.

Defendant relies on the doctrine announced in Dame v. St. Louis & San Francisco R. Co., 254 Mo. 175, loc. cit. 194, 162 S. W. 240, 245; Booher v. Trainer, 172 Mo. App. 376, loc. cit. 379, 157 S. W. 848, 849; and McClanahan v. St. Louis & San Francisco R. Co., 147 Mo. App. 886, loc. cit. 412, 126 S. W. 535, 542, as follows:

"It is familiar doctrine that the failure of an employer to call a witness who was in his employ at the time of the accident, and is presumed to be friendly and to have...