Walthall v. St. Louis Public Service Co.

• Decision Date: 03 January 1934
• Docket Number: No. 22360.,22360.
• Parties: WALTHALL v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

66 S.W.2d 177

WALTHALL v. ST. LOUIS PUBLIC SERVICE CO.

No. 22360.

St. Louis Court of Appeals. Missouri.

January 3, 1934.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be published in State Reports."

Action by Mary Walthall against the St. Louis Public Service Company. There was a verdict for plaintiff, and, from an order granting a new trial, plaintiff appeals.

Affirmed, and cause remanded.

Everett Hullverson and Staunton E. Boudreau, both of St. Louis, for appellant.

T. E. Francis and S. G. Nipper, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for personal injuries sustained by plaintiff on April 30, 1930, in a collision between a motor truck and the defendant's street car in which she was riding as a passenger, at the intersection of Franklin avenue and Twenty-First street, in the city of St. Louis.

The trial, which was had, with a jury, on January 7, 1932, resulted in a verdict and judgment in favor of plaintiff against defendant for $7,500. Defendant in due time filed its motion for a new trial. Upon the hearing of the motion for a new trial the court ordered that, if the plaintiff within ten days would remit $4,000 from the judgment, the motion for a new trial would be overruled, but otherwise it would be sustained on the ground that "the verdict is excessive and the result of passion and prejudice of the jury." The plaintiff declining to enter the remittitur, the court sustained the motion for a new trial on the ground stated in its previous order. Plaintiff appeals.

Plaintiff urges here that the order of the trial court granting defendant a new trial be reversed on the ground that the order was unwarranted and amounted to an abuse of discretion. It becomes necessary, therefore, to set out in some detail the testimony of the witnesses respecting the nature and extent of plaintiff's injuries.

Plaintiff testified as follows: "I live at 1802 Belle Glade Avenue, with my husband, Dr. Walthall. I have been married thirteen years, and am thirty-five years old. On April 30, 1930, I was a passenger on a Hodiamont street car. I was injured at Twenty-first and Franklin Avenue. There was a collision between a truck and a street car at that place. I was talking to a lady in the street car when something struck me and rendered me unconscious. I do not know what struck me, and did not regain consciousness until I was at the People's Hospital. I have no idea how long it was before I became conscious. After I became conscious I was sick and my head and stomach hurt me severely. The back part of my head was injured. I remained in the hospital two weeks and was treated there by Dr. Hurt. My left leg was in a plaster cast. It was hurt at the knee and ankle. The cast remained on for six weeks. There were no broken bones to my knowledge. When I left the hospital, I was carried into a car and taken home and put to bed. I remained in bed about three or four weeks. I was sick, very sick and weak. My head and my stomach bothered me the most. The nature of the injury to my stomach gave me female trouble. It made me suffer with my stomach. My stomach hurt me. The doctor had to treat me for an injury to my stomach and female organs. I have not entirely recovered from those injuries. My head bothers me. It aches continually. It aches most any time, no certain time. My back has not recovered. It hurts me — just occasionally it hurts. If I do a little too much work it hurts me. My ankle swells at times if I do too much on it. Dr. Hurt continued to treat me for quite a while. He treats me now occasionally. My husband also treats me. Prior to the accident I did my housework, but have not been able to do all of it since the accident. Prior to the accident I could do all my housework, washing, ironing, cooking, housecleaning. I do not do any washing or ironing or scrubbing now. I just help cook some times. My female trouble has not cleared up. I still have that. Each month it gives me cramps severely. My menstrual periods are not regular. I never had any menstrual trouble before the accident. I am awfully nervous. I show my nervousness in every way I can I guess. I am afraid to go out now. I used not to be scared of anything, go anywhere, but now it makes me nervous to ride on cars or anything of the kind. I do not sleep sometimes at night at all. I weighed 175 pounds before the accident. I weigh 150 now. I lost 45 pounds altogether. I went down to 130 and then I went up to 150. They treated me when I was in the hospital. They put my leg in a plaster cast, and gave me medicine and put ice packs on my head and stomach. They took X-ray pictures of my head. I was under the care of Dr. Hurt all the time. I am still under his care. The last time he saw me was less than a month ago. After the two weeks in the hospital he came to my house every day for a while; then he came whenever it was necessary and when I called him."

Dr. Solomon L. Walthall testified, for plaintiff, as follows: "I am a regular practicing physician. The first knowledge I had of my wife's injury came to me when she was brought by the office in Dr. Hurt's car. I went out, and seeing her condition, went on out to the hospital with her. She was unconscious at the time. She remained unconscious around a couple of hours. She was not bleeding from any visible place, not from the ears, mouth, or nose, or anything like that. The nature of the treatment given her was dressing her leg and ankle temporarily and putting ice packs on her head and on her stomach. We diagnosed concussion of the brain and figured the thing to do would be to put ice to the head right away. After she came home from the hospital she was suffering a good deal of pain. Sometimes I would give her a sedative or something of that nature. She did not rest well at night after the accident. She was healthy before the accident She was never bothered before the accident with menstrual troubles. She was regular, with a little pain accompanying, not very much. Since the accident she has been profuse a couple of times, sometimes, quite often, they tell me, but not a regular period, about twice a month, something like that. With reference to her nervousness, she can't think of anything long. If she puts down anything in the room some place, a few minutes afterwards she don't know where it is. I describe that as a partial loss of memory."

Dr. James Aldridge Hurt testified, for plaintiff, as follows: "When I arrived at the scene of the accident, plaintiff was in an unconscious condition. She remained in that condition somewhere about an hour and a half and two hours. I took her to the hospital. I ordered ice packs to her head and to her stomach, and dressed her leg and ankle, strapping her back and side. I put a plaster cast on her ankle. I diagnosed the ankle as a sprained ankle. I left the cast on about ten days. My diagnosis at the time was that she suffered with concussion of the brain. At that time I thought there was a fracture of the skull. Several days afterward we took an X-ray picture. We found that there was actually no fracture and the diagnois was concussion rather than compression. With unconsciousness for an hour and a half or two hours we would say that was a serious concussion. In other words, she was not directly unconscious for two hours. She was unconscious for about an hour and a half and then she was what we would call semi-conscious. I treated that condition with ice packs on the head. She was in the hospital about two weeks. Upon the first examination we found right at the back of the head a slight rising that made us believe that there was a fracture of the skull. Of course, we also found in connection with that condition, as we said, the condition of unconsciousness and, of course, a kind of cold clammy condition there then of the leg. We found a very severe pain on motion. The ankle and knee were swollen. I diagnosed this condition of the ankle as a sprain. I first thought the knee was fractured, but after several days it began to clear up to some extent and then we decided it was not a fracture but just a sprain. I saw her twice a day, sometimes while she was in the hospital. When she went home I went there every day for about I guess two weeks. Possibly over a period of about I would say four or five weeks the knee began to improve and it was so she could partially get around on it. So was the ankle....