St. Louis-San Francisco Railway Co. v. Cox

• Decision Date: 17 May 1926
• Docket Number: 366
• Parties: ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. COX
• Court: Arkansas Supreme Court

283 S.W. 31

171 Ark. 103

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY v. COX

No. 366

Supreme Court of Arkansas

May 17, 1926

Appeal from Mississippi Circuit Court, Osceola District; W. W Bandy, Judge; affirmed.

Judgment affirmed.

E. T Miller and W. J. Orr, for appellant.

J. T Coston, for appellee.

OPINION

WOOD, J.

Lulu M. Cox instituted this action in the Mississippi County Circuit Court against the St. Louis-San Francisco Railway Company. The plaintiff alleged that on September 1, 1922, she was a passenger on one of defendant's trains going from St. Louis, Missouri, to Osceola, Arkansas; that the train was derailed near Starland, Missouri, resulting in severe injuries to plaintiff's person and to her damage in the sum of $ 3,000, for which sum she prayed judgment.

The defendant answered and set up a written release executed October 25, 1922, in which it was recited that, on September 1, 1922, Lulu M. Cox was a passenger on train No. 805 of the St. Louis-San Francisco Railroad Company, which train was derailed at bridge No. 9705, near No. 76, Missouri; that she received severe personal injuries and loss and damage to personal property, which she claimed rendered the railroad company liable in damages; that the railroad company denied liability, and she, being desirous to compromise and adjust the entire matter, settled for the consideration of $ 1,575, to her in hand paid, and she forever released the railroad company from any and all liability for damages for such injuries, and acknowledged full satisfaction of all liability of the company to her. The release further recited that, at the time she received the money and executed the release, she was of lawful age and legally competent to execute the release, and before executing it she had fully informed herself of its contents and executed it with full knowledge thereof; that she had read the same, and understood it. The defendant alleged that the release was executed in Missouri, and, under the laws of that State, before plaintiff could maintain the action to cancel the release, she would have to tender to the defendant the amount of money paid to her in consideration of the release, which plaintiff had not done.

The plaintiff testified that she was a passenger on defendant's train coming from Ohio to Osceola, Arkansas; that the train was wrecked at Starland, Missouri; that plaintiff was severely injured. She was taken to the Frisco Hospital in St. Louis, Missouri, where two x-ray pictures were taken. She was treated by Dr. Woolsey, a surgeon of the railroad company. She was in the hospital exactly two months. While there she made a settlement with the railroad company. The consideration paid her was $ 1,575. In order to get her to sign the release, Dr. Woolsey represented to her that the injury to her ankle was all right, but that it would be easily injured again. He seemed to think it was all right. He told witness to take the crutches and use them. He said witness was all right, but must take precaution not to injure it again. Witness would be as strong as ever when the bones had had time to finish healing and time for the swelling to go down. These statements were made before witness signed the release, and, if she had not believed what he said, she would not have executed the same. She refused to settle until Dr. Woolsey told her it was all right. Witness signed the release about a week before she came home in November. Witness was suffering horribly, and went to Memphis to consult Dr. Campbell, who told her that she needed a brace. He stated that her ankle was dislocated, and she would have to have it rebroken. She went to a hospital in Memphis, and had the ankle broken and reset on November 10. Dr. Campbell performed the operation. Witness suffered a great deal. She was in the hospital at Memphis two weeks and a day. Witness still has to use a brace and crutches. Witness was a teacher, and was not able to follow her profession. On cross-examination witness described the derailment of the train resulting in her injury, and stated that, after she was taken to the hospital, two x-ray pictures were taken. She understood the purpose of those pictures was to take a picture of the bones, and she asked to see them, but they would not show them to her. She was anxious to go home. Witness further detailed the injuries and the treatment she received after leaving the hospital, which it is unnecessary to set forth.

On cross-examination in regard to the release she stated that she received the money and executed the release; that she read the release, and understood it; after describing her injuries and treatment at the hospital in Memphis, she concludes her testimony by saying that Dr. Campbell had informed her that he could not give her complete relief, and that her injury was permanent. She stated, in answer to a question, that she had scarcely any movement in her ankle, and demonstrated the same before the jury, saying that she could move it backwards and forwards a little, but not to the side. Witness weighed about 208 pounds when she was injured. Her ankle was turned over, the main portion of the foot turning in and the heel out.

Dr. Campbell testified that his specialty was orthopedic surgery. He qualified as an expert in the treatment of injuries and diseases of the bones, joints and deformities thereto. He attended Mrs. Cox, who gave witness a history of her injury. When she came to see witness in November, 1922, she was walking on crutches with difficulty and with much pain. Her left ankle was swollen and tender, and her left foot was markedly turned out, showing an unreduced Potts fracture. Witness then described the operation which he performed to refracture and realign the bones into position--a rather extensive procedure on both bones. Witness described in detail the effect of the operation and result of the injury. The effect of the witness' testimony was that, when Mrs. Cox came to see him, the fracture to her ankle was unreduced. She had a deformity that appears in cases where the fracture has never been set. The operation witness performed would not have been necessary if the fracture had been properly set and no complications thereafter, and if the bones had united in their proper positions, and if the treatment had continued of holding the foot in the proper position for a sufficient length of time, which requires six months or a year. Witness could not state definitely that she did not have proper attention at the hospital in St. Louis, because witness had seen the patient a number of weeks after the fracture was set. Witness knew that fractures often became misplaced and had to be done over. Witness concluded his cross-examination by stating, in effect, that the two fractures which witness had described, to the limb of Mrs. Cox, if properly reduced within a reasonable time after the accident, and proper instructions as to the use of the limb had been followed, would have united perfectly, and there would have been a realignment of the ankle in six months. But Mrs. Cox was 54 years of age, and a fracture of her joint might have been a permanent disability, even under the best treatment from the first. She should not have attempted to put her weight on that limb for six or eight weeks after the injury, and then with support. She would probably have to use crutches on account of the pain at that time, and should have been protected by arch supports and braces. As a rule, one could not discard crutches in such cases after the removal of the cast under one or two months, the time differing in different individuals.

The defendant introduced Dr. Howell, who qualified as an expert physician and x-ray specialist. He examined the x-ray pictures of an ankle made an exhibit to Dr. Campbell's deposition showing the fracture of the tibia at the point and also a fracture of the fibula. He stated that it was not uncommon for a person to grow up with a deformed ankle and then to have the same straightened out and to have a perfect ankle. It was not a serious thing to have a tibia or fibula fractured. The usual result of a fracture of that kind, if a person puts weight on the leg before it is perfectly united, is a displacement. His testimony was to the effect that a woman of Mrs. Cox's age and weight, with two small bones of her leg broken, as the x-ray pictures taken by Dr. Campbell indicate, if she was injured on September 1 and left the hospital November 1, purposely or otherwise, on that leg, she would likely have just what the picture indicates.

Dr Woolsey testified that he was a physician and surgeon connected with the Frisco Employees' Hospital Association in St. Louis. He qualified as an expert. He attended Mrs. Cox in the hospital in St. Louis. He explained in detail the treatment of Mrs. Cox, and his testimony tended to prove that his treatment was the usual treatment given patients in her condition, and that it was the correct treatment. He stated that Mrs. Cox left the hospital voluntarily. She was receiving free treatment, and would have received such treatment if she had remained longer. At the time she left, witness didn't tell her that her ankle was entirely healed. It was not healed. It would have required about three months' more treatment for a complete healing. It was still necessary for her to use crutches when she left the hospital. At the time Mrs. Cox signed the release on October 25, 1925, witness passed her room at the hospital when the claim agents were there, and they later told witness that they had settled with Mrs. Cox. These agents asked witness if it were all right for Mrs. Cox to go home, and witness replied that it was if she went on crutches. Witness didn't tell her or the claim agents that the ankle had completely healed...