Walker v. St. Louis Public Service Co.

• Decision Date: 10 September 1951
• Docket Number: No. 42138,No. 1,42138,1
• Citation: 243 S.W.2d 92,362 Mo. 648
• Parties: WALKER v. ST. LOUIS PUBLIC SERVICE CO
• Court: Missouri Supreme Court

Page 92

243 S.W.2d 92

362 Mo. 648

WALKER v. ST. LOUIS PUBLIC SERVICE CO.

No. 42138.

Supreme Court of Missouri, Division No. 1.

Sept. 10, 1951.

Motion for Rehearing or to Transfer to Court En Banc Denied

Nov. 12, 1951.

Coburn, Storckman & Croft, Thomas L. Croft, and Rexford H. Caruthers, all of St. Louis, for appellant.

Harold O. Piening, E. D. Franey, and Hay & Flanagan, all of St. Louis, for respondent.

COIL, Commissioner.

This is an appeal from a judgment for $14,000 entered upon a verdict awarding damages to respondent for personal injuries. Appellant alleges error in the giving of each of two instructions, in the allegedly improper use of a deposition on cross-examination, and contends that the verdict is excessive. We have concluded, for the reasons herein stated, that the judgment should be affirmed conditioned upon the entry of a remittitur. We shall refer to the parties as plaintiff and defendant.

On January 3, 1949, plaintiff was a front seat passenger in an automobile driven by her husband, proceeding northeastwardly in the middle northeastbound traffic lane on the south half of Gravois Avenue in St. Louis. Jefferson Avenue, a north and south street, intersects Gravois. There are electric traffic signals at the corners of the intersection. There are double streetcar tracks in the center of Jefferson for north and southbound cars, respectively. When the automobile reached the west curb line of Jefferson, plaintiff and her driver-husband for the first time saw defendant's streetcar at the north curb of Gravois proceeding against the red stop and go light south on Jefferson at a speed of 25-40 m. p. h. Plaintiff's husband immediately applied his brakes and brought the automobile to a stop with the right front portion thereof six inches west of the west rail of the southbound track. Immediately, the right front corner of the streetcar struck the right front of the automobile, resulting in injury to plaintiff.

Plaintiff went to the jury on primary negligence and under the humanitarian doctrine. Humanitarian Instruction No. 2 submitted failure to warn, slacken speed, or stop, in the disjunctive. Defendant contends that there was insufficient evidence adduced to support the submission of failure to warn and failure to stop. Defendant's attack on Instruction No. 2 depends upon the validity of the premise that the instruction by its language limited the zone of peril to the area within the prolongation of the curb lines of Jefferson and Gravois. Defendant does not contend that there was not sufficient evidence to properly submit the case on failure to warn and failure to stop if the zone of peril was not so limited.

Instruction No. 2 required the jury to find that plaintiff was a passenger in an automobile proceeding northeastwardly on Gravois 'at its intersection with Jefferson Avenue'; that defendant streetcar was proceeding southwardly on Jefferson 'at said intersection'; and that 'at said time and place were in a position of imminent peril of being collided with by said streetcar,' etc. Defendant ugres that, by the use of the foregoing italicized phrases, plaintiff limited the zone of peril to the area encompassed by the prolongation of the curb lines of Jefferson and Gravois. Defendant argues, and cites applicable authorities in support of the proposition, that 'intersection' means the encompassed area indicated, at least in instances such as here, in which vehicular traffic is being considered. We shall assume without deciding that 'intersection' has the meaning ascribed to it by defendant. The difficulty with defendant's position is that it fails to give any meaning to the other words contained in the phrases in question. as we view it, the key word in each of the phrases, at its intersection, and at said intersection, is the word at. Certainly this word has some meaning in the context in which used. The word at is said to be an indefinite word, less definite than in or on, and to often mean near. The primary meaning accorded the word at by the dictionary is: 'Primarily, at expresses the relation of presence or contact in space or time, or of direction toward. It has much the sense of to without its implication of motion, and is less definite than in, on, by, etc. Thus, at the house, may be in or near the house.' Webster's New International Dictionary, Second Edition. See also, 7 C.J.S., at pages 152-166; Vol. 4, Words and Phrases, pages 648-652.

In Counts v. Medley, 163 Mo.App. 546, 146 S.W. 465, it was held that the significance of the word at is generally controlled by the context and the surrounding circumstances, and that an agreement not to engage in the produce business at the town of Rogersville for five years included an agreement not to engage in the produce business in the town of Henderson, located about 1-1/2 miles north of Rogersville. For other cases construing the word at to mean near when used in various contexts and under various circumstance, see Goninon v. Lee, 119 Wash. 471, 206 P. 2; Clark County Fiscal Court v. Powell County Fiscal Court, 223 Ky. 10, 2 S.W.2d 1039, 1041; Wyble v. Lafleur, La.App., 1st Cir., 164 So. 461; Fayette County Board of Education v. Tompkins, 212 Ky. 751, 280 S.W. 114, 116; Birmingham Ry., Light & Power Co. v. McGinty, 158 Ala. 410, 48 So. 491, 492.

We think a reasonable construction of the phrases 'at its intersection with Jefferson' and 'at said intersection,' having regard for the context in which used and the circumstances in evidence, does not confine or limit the zone of peril to the area within the prolongation of the curb lines of Jefferson and Gravois; and permits the jury to find that plaintiff was in a position of imminent peril before she reached the prolongation of the west curb line of Jefferson.

Plaintiff's Instruction No. 17 is attacked on the ground that it permits the jury to award damages for permanent injuries when there was no substantial evidence of any permanent injury being proximately caused by the accident.

Certain facts appear to be undisputed. Among these are: plaintiff was 36 or 37 years of age and, at the time of the trial and for a great number of years prior to the accident, had rheumatic heart disease with mitral stenosis; this heart condition was and is permanent and progressive; the accident did not cause the reheumatic heart disease or the mitral stenosis; plaintiff was about four weeks pregnant at the time of the accident and thereafter, in August, 1949, uneventfully delivered a live, healthy baby; plaintiff's heart condition was aggravated by the trauma received in the accident.

The question on this aspect of the case is whether there is substantial evidence from which the jury could reasonably find that the aggravation of plaintiff's pre-existing, long-standing, permanent, and progressive heart condition or disease was a permanent injury. A detailed consideration of certain of the medical evidence is required.

One of plaintiff's doctors explained rheumatic heart disease and mitral stenosis, in the following language: 'Rheumatic heart disease usually consists of any damage to the valves of the heart, so that the valves either fail to close properly, allowing blood to regurgitate, when they should be taking the blood forward; or, the valves may be so narrow, a narrowing, which we term 'stenosis,' which is just like tying a purse string around a piece of tubing and pulling it tight, so that the opening is narrower than normal. It may be the mitral valve, in which case it is known as 'mitral stenosis."

Dr. Flavan, a heart specialist who examined plaintiff for the first time on January 3, 1950 (one year after the accident), and who treated plaintiff thereafter for one month, testified: that on examination, his causative diagnosis was rheumatic heart disease with mitral stenosis, auricular fibrillation, and cardiac enlargement, chiefly of the right ventricle; that he made a functional diagnosis classifying plaintiff in Classes 3 and 4 because she was 'moderately and markedly limited'; that these classes refer to arbitrary classifications used by the American Heart Association which express functional capacity by four groupings: 1. Heart disease with no limitation; 2. With slight to moderate limitation; 3. With moderate to marked limitation; and 4. With marked to 'even failure at bedrest'. Dr. Flavan further testified:

'Q. Taking into consideration, Doctor, the aggravated condition of this lady's heart, will it get better or will it get progressively worse?

'The Court: That is, will the aggravated condition get better or worse, if you can distinguish that?

'A. I would like to answer that in this way: that, first of all, rheumatic heart disease of the nature and severity which this patient has, in itself, tends to get worse; and when, to that, is added or should it be added, any aggravating cause, the consummation of the two would naturally--you would expect it to make it worse. It is hard to tell how much this accident has done, hard to express in terms of months or years any necessary change in her expectancy. The rheumatic heart is going to require treatment as long as plaintiff lives and if you assume an aggravation, you would assume that more close observation and care would be required.'

The same doctor further testified that pregnancy and childbirth throw a burden on the heart; that the hospital records show plaintiff gave birth to a baby in each of the years 1935, 1937, and 1948; that at the time of his first examination, plaintiff complained of shortness of breath, had palpitation from exercise, and was aware of the irregularity which was diagnosed as auricular fibrillation; that plaintiff said these things existed before the accident but that shortness of breath, palpitation and a tendency to fatigue were more easily provoked since the accident.

Dr. Stubbs, a heart specialist who treated plaintiff from March 13, 1948, and intermittently to the time of the trial, testified that he...