Torreyson v. United Railways Company of St. Louis

• Decision Date: 05 March 1912
• Citation: 145 S.W. 106,164 Mo.App. 366
• Parties: MARGARETTE W. TORREYSON, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Court: Missouri Court of Appeals

145 S.W. 106

164 Mo.App. 366

MARGARETTE W. TORREYSON, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Court of Appeals of Missouri, St. Louis

March 5, 1912

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. Matt G. Reynolds Judge.

AFFIRMED. CERTIFIED TO SUPREME COURT.

STATEMENT.--The appeal in this case was prosecuted to this court, but was thereafter transferred by it to the Springfield Court of Appeals under the provisions of an act of the Legislature approved June 12, 1909. [See Laws of Missouri 1909, p. 396; see, also, Sec. 3939, R. S. 1909.] In due time the cause was disposed of by the Springfield Court of Appeals through an opinion prepared by Judge COX of that court, as will appear by reference to Torreyson v. United Rys. Co. of St Louis, 144 Mo.App. 626, 129 S.W. 409. Subsequently, the Supreme Court declared the said legislative act, which purported to authorize the transfer of cases from this court to the Springfield Court, to be unconstitutional. The cause was thereafter transferred by the Springfield Court of Appeals to this court on the theory that the jurisdiction of the appeal continued to reside here and the proceedings had in the Springfield Court with reference thereto were coram non judice.

The case has been argued and submitted here, and upon due consideration, we find ourselves unable to concur in the view expressed by the Springfield Court in the opinion above referred to.

The suit is one to recover damages for personal injuries received by the plaintiff and alleged to have been caused by the negligent sudden starting of defendant's street car while plaintiff was in the act of alighting, thereby precipitating her to the ground. The amount prayed as damages was $ 35,000. The plaintiff had verdict and judgment for $ 5000, and the defendant has appealed.

The record in this case is voluminous and bears most largely upon plaintiff's physical condition before and after her injury. It appears therefrom that in 1906 the plaintiff, Margarette W. Torreyson, was a school teacher, unmarried, forty-three years old, living at Martinsburg, Missouri, where she had resided for thirty-five years. During the last nineteen years she had taught the primary class of the school at Martinsburg, and when injured had been just re-employed for another year. The testimony is abundant to the effect that she was healthy, capable, energetic, active and industrious; not only a good school teacher but a leader in school and public entertainments. She was quick and graceful in her movements. As one of the witnesses put it, "she always went around like a cricket." In all her life down to the time of her injury she appears to have been in perfect general health, missing only about a week from her school duties in all her school teaching career, some twenty-seven years. She had lived with her parents, and toward the latter end of their lives, had the responsibility of the home, her mother being very old. Both of her parents died, the father about five years before she was injured. After his death she still kept house in the old home, doing all the housework, with the assistance of a negro child.

On July 29, 1906, while visiting in the city of St. Louis, she became a passenger on one of the defendant's Euclid avenue cars and when the car was stopped at her destination, the southwest corner of Euclid avenue and West Pine boulevard, and when, according to her testimony, she was down on the step in the act of alighting therefrom, the operatives in charge caused it to be suddenly started with a jerk, precipitating her to the ground, striking the back of her head on the paving, and cutting a gash in it which bled profusely. The blow dazed her and caused a stunned sensation throughout her body. She was carried to a nearby hotel, and a physician, Dr. Butler, was called. The next day she was removed to a hospital where she remained under the constant care of Dr. Butler and the nurses for nine weeks. Dr. Butler called in for consultation Dr. Fry, an eminent specialist on nervous diseases, who visited and examined her frequently. She testified that while at the hospital she was perfectly helpless, having to be turned in the bed, to have her face washed, etc., suffered intense and almost continuous pain in the back, hip, small of the spine and base of the skull, had no appetite and could not sleep. At the end of the nine weeks, her brother took her from the hospital to his home at Laddonia, Missouri. Her condition was somewhat improved, but she was, and is still, very helpless. From the time she arrived at her brother's house until the day of the trial, she had not left the house but once, and that was for two hours in a roller chair, and that experience proved very exhausting and painful to her. Though weighing only 112 pounds when injured, she lost twenty pounds thereafter. A voluminous record abounds with testimony of those who saw and observed her, to the effect that her former health, ability and energy have been destroyed, her former activities and industry ceased, and she has become a trembling, jerking, twitching nervous wreck, without power to earn a livelihood or to perform ordinary household duties, and usually confined to an invalid chair, able to arise therefrom and walk but for short intervals and then only haltingly, by the aid of a crutch and at the price of intense pain and suffering.

Four physicians, including Doctors Fry and Butler, testified on behalf of the plaintiff. Their testimony tended to prove that she is suffering from a pronounced neurasthenic condition, that is an extreme exhaustion or breaking down of her nervous system, and is unable to perform ordinary labor or to pursue her vocation; that this condition is permanent and was caused by her fall. On the other hand, a physician who examined her at the instance of the defendant testified that he found absolutely no indication that she had sustained any injury to the nervous system as a result of her injury. Another, a specialist in mental and nervous diseases, appointed by the court, testified that though she was quite nervous, he found nothing to indicate that the nervousness was in any wise due to any diseased condition of her nervous system. A surgeon, also appointed by the court, testified there was nothing abnormal in her condition from a surgical standpoint, and that he thought her tremors were voluntary, but he stated on cross-examination that he found physical indications of an abnormal condition, an irritation of the nerves. He also testified that the examination which he and the other physicians appointed by the court had made was too abbreviated and unsatisfactory to justify a decided opinion.

The plaintiff read in evidence the deposition of Captain N. Dix bearing on the length of time plaintiff taught school, the continuity of her service, the state of her health and strength and the extent and character of her activities during all the years up to the time of her injury. During such reading the following occurred: (By counsel for plaintiff, reading.) "Q. What, if anything, do you know about her giving attention to her father and aunt during their last sickness? Mr. Jourdon: Objected to as immaterial. Objection overruled. To which ruling of the court defendant then and there duly excepted. A. That was her main--she kept house for him. She was the main dependence."

Later, while plaintiff was reading in evidence the deposition of one Rogers, the following occurred: (By counsel for plaintiff, reading.) "Q. What you do know of her taking care of her father and mother and aunt? Mr. Jourdan: I renew my objection to that for the reasons heretofore given. Objection overruled. To which ruling of the court defendant then and there duly excepted. A. Well, I think she was a faithful daughter. She stayed with them and kept house for them all. I don't know that she supported them. Q. What labor? A. Oh, well, she kept house." Dr. Taylor, one of the expert witnesses introduced by plaintiff, was permitted to testify as follows: "Q. Now, Doctor, I wish you would tell the jury in your own way what in your judgment is the trouble with Miss Torreyson and what is the probable cause of it? Mr. Jourdan: I object to that as calling for conclusion. That is the province of the jury. The Court: I think the Doctor is entitled to give an opinion as to what the plaintiff suffered from and what is the probable cause of it and the probable duration. Objection is overruled. To which ruling of the court defendant then and there duly excepted. A. Well, in forming our opinion, of course, we have got to take the history of the case into consideration. From the history of the case, I would call it a traumatic neuritis." Dr. Butler, another of her witnesses, testified as follows: "Q. Now, you may state, doctor in general terms what disease or affliction in your judgment Miss Torreyson is now suffering from? A. Why, she is suffering from a nervous condition due to an injury--bodily injury, which is usually classed as traumatic neurosis. Mr. Jourdan: I move that the answer be stricken out. That is the province of the jury. The doctor has no right to state a conclusion. Motion overruled. To which ruling of the court defendant then and there duly excepted."

In his opening argument to the jury plaintiff's counsel made the following statement: "Mr. Crigler: We brought suit in this case, gentlemen of the jury, and ask in our petition and ask it now at your hands, a verdict of $ 35,000. We brought this suit and ask this damage just the same as if the United Railways Company had executed its note to us, or if you had executed your note to me, without shaving the price of it in the least. And in this day of great corporations, and great millionaires, and...