Sneed v. St. Louis Public Service Co.

• Decision Date: 08 November 1932
• Docket Number: No. 21999.,21999.
• Citation: 53 S.W.2d 1062
• Parties: SNEED v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

53 S.W.2d 1062

SNEED v. ST. LOUIS PUBLIC SERVICE CO.

No. 21999.

St. Louis Court of Appeals. Missouri.

November 8, 1932.

Rehearing Denied November 23, 1932.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be published in State Reports."

Action by Frances Sneed against the St. Louis Public Service Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

T. E. Francis, B. G. Carpenter, and Allen, Moser & Marsalek, all of St. Louis, for appellant.

Burt A. Kaemmerer and J. Edward Gragg, both of St. Louis, for respondent.

BECKER, J.

Defendant appeals from a judgment of $2,000 rendered against it and in favor of the plaintiff in an action for damages for injuries alleged to have been sustained by plaintiff while alighting from one of the defendant's street cars.

The assignment of negligence in plaintiff's petition was the premature starting of moving forward of the street car while plaintiff was in the act of and before plaintiff had time or opportunity to alight in safety, and that she was thereby thrown to the street and injured.

The answer was a general denial.

Plaintiff testified that on March 26, 1929, she was a passenger on a west-bound Cass avenue car of the defendant company; that the car was brought to a stop at the intersection of Eleventh and Cass avenues for the purpose of permitting her to alight; that while she was in the act of alighting from the step of the rear platform of the street car it was negligently caused to start forward prematurely; that she was thereby thrown to the ground and injured.

It further appears that she was accompanied at the time by her son, aged four, and that he had preceded her in getting off the car when it was brought to a stop. Plaintiff had made some purchases, such as groceries, etc., prior to becoming a passenger, which purchases she had placed in a paper shopping bag and carried in her right hand; and, in addition thereto, plaintiff carried a bundle under her left arm. When plaintiff was caused to fall to the street, she fell face forward onto her knees and elbows and on her left side. Plaintiff lived but about fifty feet from the place of the accident. She walked home and went to bed, and had her daughter call a physician to attend her. This physician called on her every day for the first week, and then two or three times a week for a period of two months.

According to plaintiff, her fall caused injuries to her shoulder, and her left collar-bone was pulled out of place, and her knees and elbows were bruised; her left arm was injured; "it seemed like it was out of place or something. I couldn't use my arm, * * * that arm hurts me yet. * * * My left arm isn't in very good condition now. It still bothers me. I can move my arm but it hurts me. I don't know whether I can move my left arm as high as I can move my right arm. * * * Anything I do, it always gets worse now." She further testified that she was nervous after this accident, and that the doctor gave her medicine for that.

Plaintiff's testimony was corroborated by the physician who was called in to attend her. He testified that he found abrasions on her knees and on her elbows, and that plaintiff complained of pain in her left arm and over her entire body. According to this physician, plaintiff "seemed to have so much pain she wasn't able to tell a connected story as to where she really did have pain. * * * She complained of pain in her chest and back, and was in a highly nervous state * * * She remained in that nervous state all the time I saw her, for two months." When this physician first saw plaintiff, she was still "dazed more or less." Some three weeks after the accident, plaintiff complained of a localized pain in her chest at the juncture of the left collar-bone with the breastbone. Upon examination, this witness found a separation of the clavicle, "in other words, there had been a dislocation of that joint between the clavicle and the sternum"; that upon finding this condition he strapped the shoulder with adhesive, putting the arm at rest, and kept it in the bandage for some four or five weeks; that by the end of that time there had not been an entire union. He testified that the last time he had examined plaintiff, which was a few days before the trial, he found that the shoulder still showed evidences of a slight swelling. In answer to the question as to what was the reasonable probability of the condition of the arm and movement of the shoulder improving, he answered: "Well, considering her age, I don't know whether we are going to have very much improvement. There may be some slight improvement there yet. Q. But you still think that condition in the shoulder will exist for some time to come? A. Yes."

Another physician testified that he had taken some X-rays of plaintiff, the latter part of January, 1931; that the X-rays show that plaintiff's collar-bone is torn away from the breastbone, and that the head of this bone is considerably enlarged when compared with the opposite side, the right side, and also that it occupies an abnormal position. The separation is probably one-eighth of an inch. "When the clavicle is pulled out of its position it has a secondary effect upon the surrounding muscles and constitutionally upon the patient — the muscles are stretched. The patient suffers pain and distress and any one suffering pain and distress for a prolonged period of time from a condition of that sort, it tends to undermine the health, in that it causes nervousness, depending upon the extent and severity of the distress." He further found that all of plaintiff's reflexes were exaggerated, which indicates nervousness. He further testified that the "condition I found in the shoulder joint and the articulating surface of the collar bone is a permanent condition, and as the patient becomes older those affected joints will naturally become worse, the weaker part of the body breaking down first as age advances."

A physician, who examined plaintiff on behalf of the defendant a week after the accident, testified that plaintiff told him that both knees were bruised, and that she had pain across the lumbar back and the sacroiliac, that on pressure across the lumbar back and over the sacroiliac areas, and on bending motions, plaintiff stated she had pains in these areas, and that plaintiff still had some pain in the left knee on palpitation and motion. He saw no evidence of bruises on the arm at that time, nor did he find any objective evidence of an injury. On April 26th he made another examination, having been informed by plaintiff's physician that "we had missed something that developed later." He stated that plaintiff was not confined to bed, but walked with a limp. His examination showed that the end which joins the sternum and the clavicle stood forward about three-sixteenths of an inch. He gave it as his opinion that this condition of the shoulder and clavicle had existed prior to the alleged accident.

On cross-examination he testified that one who suffers a dislocation of the clavicle at its juncture with the sternum would be aware of the pain and disability of the member, and that "for some weeks it would be acute and painful. I don't recall that this woman was in severe pain when I went to see her at her home. She had pain. I would interpret that possibly as being of a moderate degree."

Jeff Jones, a witness for defendant, testified he was a passenger on the street car in question, and that he was sitting in the rear end thereof when he saw plaintiff, carrying two baskets or bundles, start to get off the car; that she was preceded by a child, and that the street car stood still throughout the time plaintiff got off; that there was no jerk of the car at all; that it was standing absolutely still; that plaintiff had gotten "clear down on the street before she fell. She was clear of the car, standing in the street, went down on her hand and knee"; that one of the bundles fell out of plaintiff's hand and the conductor stepped off the car, picked plaintiff up and handed her the bundle which she had dropped; that, in answer to the conductor's question as to whether she was hurt, plaintiff had replied that she was not.

The conductor corroborated the testimony of Jones, excepting that in his testimony he stated that the plaintiff had "made a step or so after she was off of the step," before she fell.

The motorman of the street car testified there was no movement or jerk of the street car during the time that plaintiff was alighting therefrom.

Plaintiff submitted her case to the jury upon a measure of damage instruction alone. The court gave several, and refused other instructions requested by the defendant.

It is contended here that the trial court erred in submitting plaintiff's case to the jury solely upon a measure of damage instruction, because thereby the jury was authorized to find for plaintiff, without informing them upon what facts or what theory plaintiff was entitled to recover, and "that it submitted to the jury and required them to determine for themselves the legal question thus involved."

The point must be decided against appellant, for, while our Supreme Court has repeatedly condemned the act of counsel in declining to ask for an instruction setting forth the facts entitling plaintiff to recover, it has up to the present refused to hold such submission...