Taylor v. Terminal R. Ass'n of St. Louis, 24350.

• Decision Date: 01 February 1938
• Docket Number: No. 24350.,24350.
• Citation: Taylor v. Terminal R. Ass'n of St. Louis, 112 S.W.2d 944 (Mo. App. 1938)
• Parties: TAYLOR v. TERMINAL R. ASS'N OF ST. LOUIS.
• Court: Missouri Court of Appeals

112 S.W.2d 944

TAYLOR v.TERMINAL R. ASS'N OF ST. LOUIS.

No. 24350.

St. Louis Court of Appeals. Missouri.

February 1, 1938.

Appeal from St. Louis Circuit Court; Clyde C. Beck, Judge.

"Not to be published in State Reports."

Negligence action by Roosevelt Taylor against the Terminal Railroad Association of St. Louis, a corporation, to recover for injuries caused by violent jerking of a Pullman sleeping car which plaintiff was cleaning.Judgment for plaintiff for $2,850, and the defendant appeals.

Affirmed on condition that plaintiff remit $1,000.

T. M. Pierce, J. L. Howell, and Walter N. Davis, all of St. Louis, for appellant.

Everett Hullverson and J. Edw. Gragg, both of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for damages for personal injuries alleged to have been sustained by respondent, Roosevelt Taylor, while he was cleaning a Pullman sleeping car, resulting from a violent and unusual coupling of said car to another car by the employees of appellant while said car and others were being switched by appellant on its tracks.A trial before the court and a jury resulted in a verdict in favor of respondent, who will be referred to as plaintiff, and against appellant, hereinafter called defendant, in the sum of $2,850.Defendant has duly appealed.

Defendant assigns as error the action of the court in reading to the jury plaintiff's instruction No. 6 on the measure of damages, and also contends that the verdict is greatly excessive.

It appears from the evidence that plaintiff was employed by the Pullman Company as a cleaner of its cars, having begun to work for that company in 1925.Plaintiff testified that on June 14, 1934, at about 10:15 or 10:20 p. m. he was at work wiping the mirror of the ladies' dressing room in a Pullman car named "Villa," that being the first part of the name.He was unable to remember the second part thereof.Plaintiff testified that he had been at work about five or ten minutes, the car being stopped and standing still when there came a hard jerk of the car causing him to be thrown over the back of a chair, his body making a back somersault and landing on the floor against a steam pipe and a wall in the room.The room was about seven feet by ten feet.In it were three or four chairs and washstands.The jerk, according to plaintiff, was a back jerk then a jerk forward.He could not remember the car moving until this severe shock came.Plaintiff did not know how long he remained in the position in which he landed after the jerk, but said that after several attempts he was finally able to get up.He was taken to St. Louis City HospitalNo. 2, where he remained for about twenty minutes.Those in attendance upon him at the hospital bandaged the lower part of his back with tape and rubbed his back and neck.After receiving treatment at the hospital, plaintiff went home and went to bed.The next day Dr. Spoeneman of the Pullman Company visited plaintiff at his home and put a small piece of tape on his back on top of the tape already there.The following Monday Dr. Yerby visited plaintiff at his home, and, according to plaintiff's testimony, gave him a dose of medicine, rubbed his stomach, turned him over, looked at his back, and seemed to draw the tape tighter.Plaintiff remained under the care and treatment of Dr. Yerby, who saw plaintiff three or four times a week for about a month and a half thereafter, and twice, and sometimes three, times a week for a month.Some time in September, 1934, plaintiff got up and visited the office of Dr. Yerby thereafter two or three times a week for treatment.The doctor treated plaintiff's back, but gave him no more medicine.

Plaintiff testified that his back pains him when the weather is cloudy and when he gets up in the morning, or when he bends back and forth, but that his stomach and head had cleared up.On cross-examination plaintiff testified that he had suffered from gastritis for a period of about three weeks before the accident and had just returned to work on the date of the accident; that the injury to his "stomach"(meaning his abdomen) resulting from the accident hurt him for only a couple of days and then disappeared; that his head also got all right in a couple of days.He further testified that he had to stay in bed because he felt all right while lying down, but he couldn't sit up "with no peace"; that he did not have any dislocation of the back or any broken bones; that before the accident he weighed 195 pounds, but thereafter increased to 222 pounds, then dropped to 210 pounds; that since the accident he had worked for W.P.A. wheeling dirt in a wheelbarrow, working eight hours a day and receiving $55 a month.

Dr. Walter Yerby testified as a witness for plaintiff that on June 18, 1934, he made an examination of plaintiff and found him suffering from contusions of the scalp, occipital region and a contusion of the sacroiliac region and a swelling there; that there was also a sprain in the sacroiliac joint; that plaintiff's head had cleared up all right in six or seven days; that there was not a great deal of swelling in plaintiff's back, but there was a swelling in the region where the contusion was; that he gave plaintiff immobilization treatment.Dr. Yerby further testified that he figured plaintiff's total disability at fourteen weeks, but that he could not determine the length of the partial disability; that plaintiff may have some pain now and then, but that he did not think there was a permanent injury to plaintiff's back.On cross-examination, Dr. Yerby testified that on June 18, 1934, plaintiff complained of tenderness in the iliac region on pressure and a pain in the flank; that the pain in the flank or stomach (meaning abdomen) disappeared in eight or nine days and that plaintiff's head cleared in six or seven days after June 18, 1934; that the pain in plaintiff's sacroiliac region was all the way across; that there was nothing the matter with the bones; that the injury to the sacroiliac joint was an injury to the ligaments, pulling of the ligaments, and a slight swelling.Dr. Yerby said he took no X-rays of plaintiff.

Dr. Henry E. Hampton, connected with St. Louis City HospitalNo. 2, testified on behalf of plaintiff that he made a complete physical examination of plaintiff on July 5, 1935; that he found there was a slight limitation of rotation of the trunk of plaintiff's body; that plaintiff was not able to turn and make a right angle, keeping his feet in one place, as an average individual of plaintiff's age ought to be able to do; that the limitation was in rotation to plaintiff's right and in bending forward; that he diagnosed plaintiff's condition at that time as an old sacroiliac injury; that a sacroiliac injury is a painful injury at the time it is sustained, either with or without motion, but that later on the pain without motion practically subsides, but the patient gets pain with motion; that it is almost a conjecture as to how long it will last.Dr. Hampton further testified as follows:

"Q.Doctor, this sacroiliac joint, is it a painful injury, one that will cause the patient to suffer pain?A.I have testified in the beginning it is painful.

"Q.Getting down to the end, Doctor, what is your opinion medically as to whether or not he will suffer any pain in the future with this condition?A.That depends.He is a laboring man.It depends on how much he has to use his back. * *

"Q.What is your opinion as to whether or not this man will suffer pain in the future?A.He will suffer pain in the future.

"Q.Doctor, what is your opinion as to whether this is or is not a permanent injury to his back?A.I am not in a position to say that this will be a permanent injury."

On cross-examination Dr. Hampton testified that the examination he made of plaintiff did not warrant the expense of X-rays; that he found no damage to the bone; that he did not take any X-rays; that plaintiff had a sprain of the sacroiliac joint.

Although defendant does not, in this court, question the sufficiency of plaintiff's evidence to make a case for the jury, a brief résumé of defendant's evidence will not be inappropriate.

Edward L. Wilson, a switchman employed by defendant, testified that at the time in question he was making up Pennsylvania Railroad train No. 66 and was on the car called "Villa" as it was being switched in connection with five or six other cars; that when the engine stopped, the coupling pin was pulled and these cars began to roll back; that when the cars rolled back and coupled on, they hit a little hard; that they hit a little harder than usual.Wilson further testified that the cars did not move faster than five miles an hour at any time and were going about three miles an hour, an ordinary walk, when they were coupled.

Dr. Walter H. Spoeneman gave testimony for defendant to the effect that he examined plaintiff on June 15, 1934, found no visible signs of injury to the small of plaintiff's back, no evidence of injury to the sacroiliac joints, no trouble to his spine; that plaintiff had only a muscle strain in the lumbar part, no strain in the sacroiliac; that a strain is an overstretching of the muscles; that there is pain connected with it on motion.

Dr. Leo W.Will testified for defendant that he examined plaintiff on November 18, 1935, and found nothing wrong with plaintiff's sacroiliac joint, either clinically or from an X-ray standpoint; that he found no separation of the sacroiliac joint; that there was no limitation of motion in plaintiff's body, no evidence of any injury to the ligaments around the sacroiliac.

Dr. Edwin C. Ernst testified for defendant that he X-rayed plaintiff on June 30, 1934, and found no evidence of bone injury or bone pathology or fractures in the spine or sacroiliac joint and no evidence of injury to plaintiff's sacroiliac joint; that the X-ray would not show an ordinary strain.

Miss Emma Bruenger, a registered visiting nurse employed by the Pullman...