Turner v. Yellow Cab Co. of Springfield

Decision Date26 June 1962
Docket NumberNo. 7954,7954
Citation361 S.W.2d 149
PartiesKenneth Wayne TURNER, Plaintiff-Respondent, v. YELLOW CAB COMPANY OF SPRINGFIELD, Missouri, and LeRoy Breese, Defendants- Appellants.
CourtMissouri Court of Appeals

Chinn, White & Dickey, Springfield, for defendants-appellants.

Haymes & Haymes, Marshfield, Farrington & Curtis, Springfield, for plaintiff-respondent.

STONE, Judge.

For injuries and damages alleged to have resulted from a vehicular collision on August 21, 1959 (hereinafter referred to as the first accident), plaintiff, Kenneth Wayne Turner, obtained a jury verdict for $5,750. On this appeal from the judgment entered thereon, defendants seek a new trial on the issue of damages only. Their complaints are (1) that the verdict was excessive, (2) that it was so excessive as to demonstrate passion and perjudice against defendants and require reversal, and (3) that the trial court prejudicially erred in permitting plaintiff 'to introduce evidence of injuries and expenses' in connection with another vehicular collision in which plaintiff was involved on October 3, 1959 (hereinafter referred to as the second accident).

The first accident occurred shortly after midnight on August 21, 1959, in Springfield, Missouri, when a station wagon owned and driven by plaintiff was 'bumped from the rear' by a taxicab driven by defendant Breese and operated for defendant, Yellow Cab Company of Springfield. Although both vehicles were moving 'very slow,' plaintiff said that the impact 'wasn't slight'--'it was violent'--'it was a sharp blow'--and that his neck 'snapped back' and his head 'hit the back of the seat.' Alighting from their respective vehicles, the drivers examined the rear end of plaintiff's station wagon, found a dent about the size of a quarter in the left rear bumper guard, and (with defendant Breese agreeing to replace the bumper guard) 'decided it wasn't enough to call the police.' We note parenthetically that, when plaintiff examined the rear end of his station wagon after his dismissal from the hospital on August 28, 1959, he then found (so he testified) that 'the bumper guard was dented, the (rear) bumper was sprung, and it showed evidence there of where the bumper had been knocked up against the panel of the car and scraped the paint.'

Reverting to plaintiff's account of what had occurred on the night of the first accident, we read that, when he got into his station wagon after he and defendant Breese had inspected its rear end, plaintiff noticed that 'the front seat . . . wasn't seated right,' but that he proceeded to a coffee shop for a sandwich and coffee before starting for his home in the neighboring city of Marshfield. While in the coffee shop, plaintiff 'began to notice a pain in the back of my neck and my head kind of hurt,' so he went to the office of the Yellow Cab Company and, failing to find defendant Breese there, located him and the taxicab dispatcher having coffee in a nearby restaurant. At the dispatcher's direction, plaintiff and Breese went to the police station and reported the accident. Then returning to the taxicab office, plaintiff talked over the telephone with a Springfield doctor (called by the dispatcher), who suggested that plaintiff go home that night and come back the next morning. On the way out of Springfield, plaintiff's 'neck was hurting worse,' so he stopped at a service station and talked over long distance with his family physician at Marshfield who advised him 'to turn right around and go back to Burge Hospital and to call Dr. (Erin M.) Dillard.' This plaintiff did.

Upon admission to the hospital, plaintiff was given a hypodermic and a sleeping pill; and in the morning Dr. Dillard examined him, arranged for a series of x-rays, made 'an x-ray and a clinical diagnosis' of a compression fracture (i. e., a flattening of the body) of the sixth cervical vertebra, and placed him in traction. Within a day or so, plaintiff's back began to hurt and the doctor directed that slats be placed under the mattress. Plaintiff laid on this hard bed in constant pain and in traction, except while receiving therapy treatments, until he was dismissed from the hospital on August 28, one week after his admission. Before dismissal, plaintiff was fitted with a neck brace or neck collar which, at the doctor's direction, he wore until October 3. After further x-ray examination on that date, Dr. Dillard told plaintiff that he was progressing as well as possible and that he should 'take the neck brace off for a week or ten days, to see how it got along, and (then) to come back for a recheck.'

While driving downtown after leaving the doctor's office on October 3, plaintiff was involved in the second accident when, while stopped at a traffic light, his vehicle again was rear-ended. That impact 'was harder' than the impact of the first accident; but, as plaintiff pointed out, he had observed the approaching automobile involved in the second accident before it struck his station wagon and thus was braced for it, whereas he had not seen the taxicab driven by defendant Breese prior to the first accident and accordingly it was unexpected. After reports had been made to investigating police at the scene of the second accident, plaintiff called Dr. Dillard over the telephone and, upon the doctor's advice, reentered Burge Hospital immediately. Following that period of hospitalization which lasted five days, plaintiff again wore a neck collar 'while I was driving' until December 1959. At a time subsequent to the second accident but fixed no more definitely than 'along during the winter,' Dr. Dillard prescribed a back brace which plaintiff still was wearing when the case was tried on October 13, 1960.

At the time of trial, plaintiff complained of limitation of motion in the neck, 'a catch' in his back when he straightened up after bending over, pain both in the neck and in the back, and numbness of both hands. Feferring first to the neck, Dr. Dillard found 'true muscle spasm,' which cannot be induced or feigned by a patient, in plaintiff's neck following the first accident. It is apparent from Dr. Dillard's testimony that this muscle spasm had not been completely relieved or entirely eliminated prior to the second accident, for, in discussing his examination of plaintiff at the hospital after the second accident, the doctor said that he had found 'more muscle spasm in his neck than I had found, possibly, that day when he left the office.' (All emphasis herein is ours.) Stoutly supporting his diagnosis of a compression fracture of the sixth cervical vertebra (although conceding that the fracture was 'minimal'), Dr. Dillard said that there had been no change in 'this abnormality in his (plaintiff's) neck vertebra' during the period from the first accident to the trial, and that this condition will be permanent. According to Dr. Dillard, 'there has always been some limitation of movement of the neck ever since (plaintiff's) injury'; and, when counsel probed as to the permanency of this limitation, the answer was that 'I would anticipate some loss of motion of the neck, yes.' The doctor also 'would anticipate some chronic pains in his neck . . . in the future.'

Referring to the back, Dr. Dillard reported that x-rays of the dorsal and lumbar spine were essentially normal. But, as we have noted, plaintiff (so he said) began to experience pain in his back within a day or so after the first accident; and Dr. Dillard testified that when he saw plaintiff in the doctor's office on September 3, 1959 (six days after dismissal from the hospital), plaintiff complained of pain in his low back and, after undergoing further examination on that date, was advised to restrict 'any activities that would aggravate his low back condition.' This condition was diagnosed by the doctor as 'a low-back strain or a lumbosacral strain . . . a strain-type injury to the muscles and ligaments of the lower back.' Dr. Dillard thought that, at the time of trial, plaintiff's 'principal disability lies in his neck'; and, although plaintiff then had 'continued symptoms in his low back and this would be aggravated by heavy lifting,' the doctor attributed to the 'ligamentous and muscular strain' of the lower back such 'subminimal disability that I feel that he (plaintiff) should make an almost complete recovery from that particular injury.'

As for the numbness of the hands, plaintiff's testimony was that: 'My hand has been numb, just like I had slept on them all night long, ever since the (first) accident.' Complaint concerning this alleged condition was made to Dr. Dillard on September 10, 1959, when (in the doctor's words) 'we first noticed numbess of both hands.' At the time of trial, the doctor thought that, 'as his (plaintiff's) neck establishes itself, that . . . numbness likely will disappear . . . it has been merely an annoying numbness that doesn't prohibit him from doing anything that he wants to do.' Plaintiff nevertheless asserted in his testimony that this alleged numbness of the hands was 'one reason why I cannot do tedious work,' such as repair work on sewing machines and motors in which, among other things, he had been engaged immediately prior to the first accident.

At this point, it may be recorded that, when Dr. D. L. Yancey examined plaintiff at defendants' request on June 3, 1960, the doctor found that, 'along each trapezius muscle, which is the large muscle that extends from the shoulder up the neck and on each side, he (plaintiff) had some mild degree of tenderness,' and that, although anteroposterior motion of the neck was normal, motion was slightly restricted on rotation or turning of the head. Plaintiff then complained of some tenderness in the lumbar area and Dr. Yancey found that 'motion was slightly limited when he (plaintiff) would bend forward . . . and on...

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