Young v. St. Louis Public Service Co.

• Decision Date: 13 July 1959
• Docket Number: No. 46963,No. 1,46963,1
• Citation: 326 S.W.2d 107
• Parties: Jane YOUNG, a Minor, by Her Next Friend, Betty Young, Respondent, v. ST. LOUIS PUBLIC SERVICE CO., a Corporation, Appellant
• Court: Missouri Supreme Court

Page 107

326 S.W.2d 107

Jane YOUNG, a Minor, by Her Next Friend, Betty Young, Respondent, v. ST. LOUIS PUBLIC SERVICE CO., a Corporation, Appellant.

No. 46963.

Supreme Court of Missouri, Division No. 1.

July 13, 1959.

Lester F. Stephens, St. Louis, for appellant.

Thomas B. Maloney, Clayton, for respondent.

DALTON, Judge.

Action for damages for personal injuries alleged to have been sustained on account of defendant's negligence. Verdict and judgment were for plaintiff for $15,000. Defendant has appealed.

There is no contention here that a case was not made for the jury, hence a brief statement will be sufficient. On August 10, 1953, plaintiff, a five year old child, accompanied by her mother, Mrs. Betty Young, and a six year old brother, were passengers on defendant's southbound streetcar on Broadway in the City of St. Louis. Mrs. Young signaled for a stop at Utah Street, where she wanted to look at an apartment. When the car stopped, she took both children by the hand, leading them ahead of her, and started to leave by the rear door of the car. The son reached the sidewalk and was released by his mother, but as plaintiff was passing through the exit door and leaning forward to see where she was going to step, the front and rear sections of the exit door suddenly closed, striking plaintiff on each side of her head at the same time and severely injuring her. Mrs. Young, who had stepped down into the stairwell behind plaintiff, was unable to get her in or out of the car until the doors had, in rapid succession, closed five or six times on the child's head. Mrs. Young and other passengers 'yelled to the conductor to stop' and he looked back and said 'Okay' and stopped the movement of the doors, opened them and let plaintiff and her mother out. The streetcar then went on but, as it left, Mrs. Young took its number.

When plaintiff reached the sidewalk, there was 'a mark down both sides of her face from as far up in her hair as you could see down to the end of her cheeks and jaw. She was crying and screaming.' Later that day, she started to complain of a headache 'her ears began to bother her' and by 2 p. m. they 'were already running.' That afternoon, she was taken to Dr. C. P. Lynxwiler, a pediatrician, where she was examined and referred to Dr. Robert Ryan, an ear, nose and throat specialist, for further examination. A Dr. Nemec took X rays of her skull, but no fractures were found. None of these witnesses were called by plaintiff. Other facts will be stated in the course of the opinion.

Error is assigned (1) on the court's refusal to grant defendant a new trial on the ground of newly discovered evidence; (2) on the giving of plaintiff's Instruction No. 1; (3) on the court's refusal to sustain objections to certain argument of plaintiff's counsel to the jury; and (4) on an alleged grossly excessive verdict.

For convenience we shall consider the last assignment first. We shall state the evidence as to injuries favorably to the plaintiff, disregarding defendant's evidence unless it aids the plaintiff's case. Plaintiff was a little more than five years of age when she was injured, August 10, 1953. She was ten years of age at the time of the trial. Suit was instituted December 9, 1953, and a trial had in January, 1958. Plaintiff did not testify.

As stated, Mrs. Young took plaintiff to Dr. Chester Lynxwiler, a pediatrician, for examination on the day she was injured and to Dr. Robert Ryan some four days later. Dr. Ryan examined and treated the child daily for some three weeks and gave her 'shots.' Thereafter, she was not under a doctor's care and she received no treatment or examination from about September 7, 1953, to April 8, 1954, when she was examined by Dr. Charles E. Eimer, an ear, nose and throat specialist, at the request of the defendant-appellant.

The testimony of plaintiff's mother tended to show that plaintiff had not had any hearing difficulty, ear trouble or 'running ears,' prior to August 10, 1953; and that she had never complained of headaches or been nervous before that date. After plaintiff was injured, she never did get over her nervousness. She would cry a great deal and also sleep an excessive amount. She wouldn't play like she had before. When she started to school in the fall of 1953 she couldn't hear anybody. She would bring home the wrong pages and often the wrong book for homework, because she had misunderstood that was said. She had to be looking directly at you or she wouldn't answer. The child had never had any such trouble before. During the last four or five years, when she listens to television and radio, she plays it very loud. The same is true when she uses the record player. She cannot hear it otherwise, or understand and enjoy it. She gets upset easily at school and, if she has an argument with a playmate, the same result follows. Any little difficulty brings on a headache. Her eyes twitch and her face moves up and down on the left side. Some of these things did not develop until a few months after plaintiff was injured. She has had to miss considerable school. The child tires easily and wants to stay in bed and rest in the middle of the day. She normally didn't do that, since she quit taking naps when she was only four years old. When the child gets these headaches, which are always severe, she wants to go to bed. Her nervousness has continued to get worse. She cannot stand shrill noises such as from airplanes, streetcars or any loud shrieking noise. Clanging noises also hurt the inside of her head. She puts both hands over her ears and cries and wants to go home. She never wants to go out with the family. Before she was injured she was always eager to go. During the last five years there has been no improvement in the child's condition with respect to headaches and her ability to hear. She also complains of dizziness and cannot bend down to tie her shoes. She cannot lie on the floor to color books, she has to sit at a table and hold her head up straight. She never had any such trouble before her injury. Her ears have stopped draining but not the headaches and dizziness. Since 1953 she has 'never been good in school.' She was moved to the front of the class so she would be able to hear, otherwise she couldn't understand what was said.

At the direction of plaintiff's counsel, plaintiff was taken to Dr. Hooper W. Welch, an ear, nose and throat specialist, for examination and hearing tests on May 6, 1955, and again on November 28, 1956. Dr. Welch testified that his examination of plaintiff revealed a slight lateral nystagmus in both eyes and a slight laxity of the facial muscles on the left, indicating a permanent pathological condition. Hearing tests, including the Rinne test, Weber test and audiometric test, showed a definite hearing loss in both ears, more severe in the right. This appeared not only in the air conduction test but also in the bone conduction test which indicated damage to the eighth cranial nerve, which nerve has both a vestibular or balance function and a hearing function. A re-check on May 9, 1955, showed practically the same pattern of loss in both ears. He also found that the plaintiff had a binaural hearing loss of 20.1% computed according to the American Medical Association formula; and that the impairment of plaintiff's hearing was becoming increasingly worse, as indicated by his November 28, 1956, tests. The impairment of hearing is permanent. The hearing loss and the damage to the eighth cranial nerve are to a reasonable degree of medical certainty the result of trauma sustained on August 10, 1953, when the child's head was struck by the streetcar doors. Because of the muscle weakness on the left side of the child's face, Dr. Welch suspected some involvement of the seventh cranial nerve and referred the child to a neurologist, Dr. James F. McFadden.

Dr. McFadden examined the plaintiff on January 5, 1956, and on September 28, 1957. His examinations revealed a marked tremor of the eyelids, weakness of facial innervation on the left, weakness of the tongue on the left side, a horizontal mystagmus, that is, a jerking of the eyeballs when she looks to the right or to the left. It was more pronounced to the left. He also noted a decrease of reflexes of the upper extremities. The left ankle reflex was more active than the right, and the Babinski reflex test was positive. Dr. McFadden testified that, based upon objective neurological findings noted in his examinations, plaintiff had sustained definite structural changes in the brain, more marked on the right side and probably due to a small hemorrhage in the brain. The parts of the brain controlling the seventh and eighth cranial nerves had been damaged.

Dr. McFadden further testified: 'It is my opinion that the conditions I elicited were caused * * * by the traumacaused by the first accident * * * by the streetcar doors closing on her ears. In view of the fact that they (these conditions) have extended for more than a year, it is my opinion that they are permanent * * * it can cause her to be retarded in school work.'

Other facts shown by plaintiff's evidence are that in 1950 plaintiff did have some ear trouble. She fell on a bobby pin and it went into her ear, but it didn't puncture the skin or injure the ear, nevertheless, her mother took her to Dr. Lynxwiler and then to the City Hospital for examination. They found no damage and plaintiff suffered no difficulty thereafter.

On January 11, 1955, plaintiff was involved in an automobile accident. She was struck by an automobile and knocked some thirty feet. Her sleeve was torn and she was in a state of shock for a few hours. Her head and ears were not hurt. Her lip was cut and she received a breast injury, but she had no doctors to treat her, except for the treatment given the day she was taken to the hospital. A suit for $7,500 was instituted against the driver of the automobile on January 18, 1955, approximately seven days after plaintiff...