Stofer v. Dunham

• Citation: 208 S.W. 641
• Decision Date: 06 January 1919
• Docket Number: No. 12911.,12911.
• Parties: STOFER v. DUNHAM et al.
• Court: Court of Appeal of Missouri (US)

208 S.W. 641

STOFER v. DUNHAM et al.

No. 12911.

Kansas City Court of Appeals, Missouri.

January 6, 1919.

Appeal from, Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Cora E. Stofer against Robert J. Dunham and another, receivers of the Metropolitan Street Railway Company. From judgment for plaintiff, defendants appeal. Reversed and remanded.

Clyde Taylor, of Kansas City; for appellants.

Frank Friedberg and J. M. Johnson, both of Kansas City, for respondent.

TRIMBLE, J.

This is an action for damages for personal injuries. The charge of negligence is founded upon the doctrine of res ipsa loquitur; the petition alleging that while plaintiff was a passenger for hire upon a certain east-bound street car, and in the exercise of ordinary care for her own safety, the car in which she was riding was negligently allowed to overtake, violently run into, and collide with another east-bound car of defendants', being operated on the same track, whereby she was severely injured and damaged as therein set out. The answer was a general denial. There was a trial resulting in a verdict and judgment for plaintiff in the sum of $3,000, from which defendants have appealed.

The witnesses for both sides testify that there was a collision resulting from an Argentine car overtaking and running against a stockyards car. But there Is a very sharp dispute as to the force and extent thereof. Plaintiff and her witnesses claimed that there was a wild runaway of the Argentine car producing confusion and alarm among the passengers, and a crash into the other car of so violent a nature as to throw the passengers from their seats toward the front end of the car, and smashing the colliding ends of the two cars. On the other hand, defendants' witnesses testified that the collision took place while the front car was in motion, going in the same direct on the rear car was, and occurred at a point where it was upgrade, and that the collision was so slight and of such little force as to produce no injury whatever to passengers.

There was also a very serious dispute between the parties as to whether plaintiff was injured, and as to whether the conditions of which she complained after the collision, and which she alleged were in existence at the time of the trial, were the result of the collision or of any injury received therein, or whether they arose from causes and conditions existing prior to the collision. Indeed, it was not even conceded that plaintiff was on the car at the time of the collision. Plaintiff testified that she was seated on the left side about the center of the car or three or four seats from the front next to the window; that in the collision she was thrown forward against the seat in front, then backward; and that then a lady seated by her was thrown against her and she against the window casing. No one else testified that she was there, and the testimony of defendants' witnesses tended show that she was not there. The most of them, however, said they did not see plaintiff on the car. Defendants also introduced the testimony of a lady who sat in the middle of the car on the left side. She testified that she saw no persons thrown out of their seats or upon the floor nor any lady thrown against another lady, nor was she, herself, thrown against the lady she was seated with. There is, however, no affirmative showing that this lady was in the seat with plaintiff or was the lady plaintiff says was thrown against her. As stated, however, there was a very serious issue as to whether plaintiff was injured by the collision, and as to whither the alleged permanent conditions existing at the time of the trial were caused by the collision or were merely the results of a former weakness and injury.

Plaintiff admitted that prior to the collision she had had a severe fall on the ice and sustained a Colles's fracture of the wrist, but said she had fully recovered from that, and that prior to the collision she was well and had never had any serious illness prior to that date. She also testified that during the two years she lived in Oklahoma she did not have nervous jerky spells, or fainting fits, nor anything like that, but was a strong woman with no sickness except childbirth and the natural weakness arising therefrom. She testified that the first thing she remembered after the final crash she Found herself alone in the car and tried to rise, but found it almost impossible to do so. She said she was "cold all through, and my feet were heavy like pieces of ice hanging to them, and I could hardly drag them." She testified that she got to her feet and went out the front door of the car after having a short conversation with the motorman, giving him her card. She further said she got off the car and stood a little while, and then went to a corner grocery and telephoned her husband that there had been an accident, but not to worry as she would be home as soon as she could. She then came back and boarded another car and rode to Nineteenth and Main streets, where she got off, but could hardly stand; that she went into a restaurant there and telephoned her husband to come for her; she then sat down on a bench on the sidewalk and waited till her husband came, and then walked with him over to Nineteenth and Walnut streets, where they boarded a Holmes street car, and upon leaving that car walked a half block to her home. She there called for a cup of coffee, and then became unconscious, remaining so for ten days, and when she regained consciousness she was suffering pains in her back running up into her head through the back of her neck and shoulder. She also testified to a numbness in her left arm and leg. As to her nervous condition at the time of the trial, she said she felt as if something alive was crawling over her all the time; that she had never fainted or become unconscious before the accident.

A physician, testifying for her, said he was called to see her ten days after the collision. He examined her, and says he found that there was a wrench of three ribs and a sprain in the small of her back; that from the dazed condition in which she appeared to be he thought her brain and spinal column had received a concussion; that shortly before the trial he examined her again and found her nervous system to be in a very bad condition with evidence of tenderness over the ribs and spine; that he would not say positively that he saw any bruises, and as to the injury to the ribs he could not tell definitely as to that, but had to go somewhat on what the patient said and her actions. On cross-examination he said that such a fall as plaintiff had admitted having received before the collision could cause a concussion of the spine, but that it would be so slight as to leave no effect. Another physician, introduced by her, testified that he examined her six days after the collision and found evidence of a general nervous condition, a tenderness along the spine and on the left side and numbness of the left leg and the ankle of the left leg. In answer to a long hypothetical question, which included an assumption that she had never had any serious ailment aside from the birth of two children and the fall above mentioned, he gave it as his opinion that her condition could have resulted from the collision, and that her condition was permanent. On cross-examination he admitted that a fall such as plaintiff had might cause a nervous condition; that hysteria was a mental disease with physical symptoms; and that a person suffering with hysteria may, and sometimes does, complain of pains and tenderness in the back and of numbness in various parts of the body. Another physician testifying in her behalf said he had examined her about two weeks before the trial, and his testimony as to her condition was similar to that of the first physician mentioned above. The collision took place on November 28, 1914, and the trial was had In December, 1916.

The defendant placed upon the stand its physician, who visited her two days after the collision, and he testified he stripped her to the waist and thoroughly examined her back, chest, abdomen, head, and sides, but could find no indications of any injury, but that she was in a nervous, hysterical condition, and when he saw her...