Patterson v. Springfield Traction Co.

STURGIS, J. This is a suit for personal injuries received by plaintiff by reason of the derailment of one of defendant’s electric cars on which plaintiff was a passenger. The suit was brought to the January term, 1913, of the circuit court, at which term the plaintiff, of her own motion and by leave of court, made an amendment of her petition. The gist of the amended petition is that while plaintiff was on defendant’s electric ear as a passenger, “the said car jumped the track by reason of the carelessness and negligence of the defendant, its agents, servants and employees, and plaintiff was thereupon and thereby violently thrown out of her seat and received serious and permanent personal injuries,” describing the same, her suffering, treatment, expenses, etc. The words in italics show the amendment. The defendant then filed its answer, a general denial. The defendant also asked and obtained a continuance to the next term of court because of the amendment, presumably on the ground of raising new issues. The case went to trial at the — 256 — next term and defendant objected ore temis to the introduction of any evidence for the reason that the original petition failed to state a cause of action and the amended petition constitutes in law a departure. The overruling of this objection constitutes the first assigned error. In the first place we have no hesitation in holding that this was a proper amendment, even if objection had been made and exception saved in a proper manner. The amendment did not change the cause of action. In the next place, raising an objection to the petition by oral objection to the introduction of evidence 'is not regarded with favor for any purpose and certainly goes no further than to raise objection to the petition then before the court and not to the defects in .a former petition or the propriety of an amendment .thereof. The suit is for $5,000 and on a trial by jury plaintiff recovered $2500. .The second objection relates to the admissibility of evidence. All the evidence shows that the front wheels or truck left the rails, dropped to the ground between the ties causing the car to come to .a sudden stop-. The witnesses differ much as to the rate of speed and the violence of the stop. The plaintiff’s evidence is that the stop was so violent as to throw her forward against the next seat and to the floor, causing visible marks and swelling on her side near the hip and on her leg. She was transferred to another car and made no complaint at the time, though she says it pained her but she did not know the extent •of her injuries. She also says that she told the conductor on the car to which she was transferred of the .accident but that conductor says it was the next day after the accident that she told him and that she did not then claim to be injured. She says she went on to her work as ticket seller at an amusement park and tried for some days to do her usual work, so as to hold her position, but that a month or so later she was compelled — 257 — to quit as her injuries developed. She consulted a physician, Dr. Dorrell, the next morning after the accident, who then made an examination of her. He says, in short, that he found the womb anteverted, i. e., thrown forward, and one ovary prolapsed and dropped down. He also said he had examined her a short time before the accident and these conditions did not exist; that these female organs, were then in a normal condition. The occasion of his previous examination was that she was complaining of headaches and he made the examination to determine whether her headaches was caused by any derangement of the female organs and found that it was not. Dr. Dorrell continued to treat her for some time after the accident and examined her shortly before this trial. He described the progress of plaintiff’s malady by saying that this misplacement of the female organs impaired the circulation and caused chronic congestion therein, which brought about a condition called endometritis, i. e., an inflamed and thickened condition of the inside or lining of the womb. It was also shown that the womb became enlarged and that there was a bloody mucous discharge. These conditions resulted in nervousness, headaches, depressed feeling and some pain — ills designated as female troubles. As to her condition Dr. Dorrell was strongly corroborated by. Dr. Eoseberry, who examined her some two or three months after the accident and again shortly before the trial. The important question for the jury to determine was whether these maladies were caused by the derailment of the street car in question. On this point we have Dr. Dorrell’s evidence, as well as that of plaintiff, that these conditions did not exist shortly before the accident and that the probable cause of tbe same, to-wit, the displacement of the female organs, did exist shortly thereafter. Over defendant’s objection that the question corn — 258 — bined hypothetical facts with facts actually observed and known to the witness and that it usurped the function of the jury in allowing the witness to say “ whether or not the accident caxised or was likely to cause the condition found.” Dr. Dorrell was asked and answered as follows: “Q. 'Where the evidence shows that the patient was riding on a street car and the street car ran oft the track and jumped to the ground with some force, and the patient was sitting on her seat and was thrown out of her seat with considerable force, and received a blow in the region of the thigh, and also received a bruise on the leg, and injury to the hip, and you say this prolapsed condition of the ovary, and anteverted condition of the womb, could be caused by such injuries? A. Falling forward in a street car or anything else is always liable to bring about in a woman an anteversion of the womb, throwing it forward. It does it from the force of the body and the coming in contact with some other body, which you can understand, how a body can be thrown forward. The womb is folded in the pelvis, but' the connections are not as strong as a rope. They are made up of tissues, which allow the womb to fall forward and drop down on acount of an unusual or out of the ordinary experience. A falling forward of the womb, causes a displacement of the uterus.” Also, Dr. Roseberry was asked and answered in this manner: ‘ ‘ Q. Suppose the evidence showed the patient was riding in a street car and the street car left the track and bumped down onto the ground with some force and the patient was thrown out of her seat and thrown forward and in such manner as to receive a bruise on one side of her leg and bruise on the hip and bruise in this groin, would you say that such a falling as that could cause a prolapsed condition of the womb or the condition that you found there the.first time of the ovaries — Just describe to the jury how that matter is in a person the evidence shows is normal before the accident. A. An accident of that — 259 — kind might produce a disrupelment of the organs. That is., with reference to the womb, might have a prolapse, a dropping down of the womb. I found at the time of examination an anteversion, - a throwing forward. Q. Could that anteversion be caused by that accident? A. Yes, it could be.” We find no case holding that a medical expert may not testify as to the conditions of the human organism and the kind and extent of a person’s injury or malady, found and observed by him on a personal examination of the patient, and also testify as an expert as to the cause of such injury or malady, based on hypothetical facts put in evidence by other witnesses. In testifying, both as an ordinary witness and as an expert, his credibility is. a matter for the jury. The facts testified to by him may or may not be believed, and thereby be established to the satisfaction of the jury, just as with any other witness. His evidence as an expert is purely advisory, based on his superior knowledge, training and experience and is in the nature of an opinion based on facts assumed to be true only for the purpose of eliciting such opinion. It is perfectly proper to instruc1' the jury, as was done in Smith v. Telephone Co., 113 Mo. App. 429, 443, 87 S. W. 71, cited by appellant, that before the opinion of the expert has any value whatever, the jury must first find to be true the facts on which such opinion is based. The above case is an authority for and not against the proposition that the truth of the f^cts on which the opinion is based may rest in whole or in part on the evidence of the expert himself. In Riley v. Sparks Bros., 52 Mo. App. 572, 575, the court said: “The rule is that an expert may give an opinion based on a state of facts which he himself has witnessed, or which are detailed to him by other witnesses, or which are put to him in the form of a hypothetical case.” That such is the accepted rule and practice is shown by Glasgow v. Metropolitan St. R. Co., 191 Mo. 347, 358, 89 S. W. 915: Holloway v. Nansas. — 260 — City, 184 Mo. 19, 40, 82 S. W. 89; Benjamin v. Railway Co., 50 Mo. App. 602, 608; Brown v. Huffard, 69 Mo. 305; Jones v. Traction Co., 137 Mo. App. 408, 415, 118 S. W. 675; Wilbur v. Railroad Co., 110 Mo. App. G89, 697, 85 S. W. 671; Porter v. Hetherington, 172 Mo. App. 502 513, 158 S. W. 469. As to the contention that these hypothetical questions allowed the witness to usurp the province of the jury in stating a conclusion rather than an opinion of the witness, we think a reading of the same will show that there is nothing to support appellant’s statement that the witnesses were allowed to state that the derailment of the car “was not only sufficient to produce but did produce the conditions of plaintiff.” No witness so testified. They only testified that such an accident, causing plaintiff to be thrown forward against the seat and to the floor with the force and in the manner testified to, was liable to and might produce the displacement of the female organs, as found by them and which, in turn, brought about, in their opinion, her diseased condition and suffering. We think it is not objectionable for a witness to say that a certain kind of an accident was likely to cause the conditions found. The questions and answers objected to are not open to the objection of allowing the experts to decide the very issues controverted in the trial, as is held in Bragg v. Metropolitan St. Ry. Co., 192 Mo. 331, 343, 91 S. W. 527; Glasgow v. Metropolitan St. R. Co., 191 Mo. 347, 358, 89 S. W. 915; Taylor v. Railroad Co., 185 Mo. 239, 255, 84 S. W. 873; Spaulding v. City of Edina, 122 Mo. App. 65, 69, 97. S. W. 545. The correct rule is stated in the Glasgow case, supra, a case in many respects similar in its facts to this one, as follows: “It was competent for the learned witnesses to state what cause or causes might produce such a result, and this both of them did without objection, stating that such a fall could produce it and that there were many causes which would produce the same — 261 — effect, but it was incompetent for them to say that in this case the plaintiff’s condition was, in their opinion, the result of the alleged fall.” The questions and answers objected to were properly and clearly within the rule announced in all the cases. Appellant also claims error in allowing the plaintiff to testify that she was not able to work continuously after the accident and had to quit her position because she was not able to work; and this too after defendant had tried to show that she did in fact go on with her work as usual and therefore was able. No authority is cited in support of this contention except the statement that plaintiff was usurping the province of the jury in so testifying as to a conclusion, citing the same authorities just discussed on the question of expert evidence. As this was not expert evidence, these, authorities do not help us. Such evidence is. so common in cases of this character and the objection so technical, that we will pass it up by merely ruling adversely. The doctors above mentioned further testified that the diseased conditions they found and described, and which the jury has found resulted from plaintiff’s injuries, would be permanent unless relieved or cured by surgical operation. The usual operation for such malady is known as curettement, which is painful, more or less dangerous, and uncertain as to result. If this fails to cure, the only other remedy would be a surgical operation of hysterotomy or removal of the womb. Dr. Dorrell was then allowed to testify, over objection, that the usual hospital and surgical expense of curettement is about $75.00 to $80.00. The offer to show the usual expense of hysterotomy was excluded. Error is assigned as to the admission of this evidence. The objection is that it is too remote, uncertain and speculative to constitute an element of damages. We may here remark that the instructions given on the measure of damages do not authorize or direct the jury to add — 262 — anything for future medical or surgical expenses. It cannot be questioned but that in personal injury cases the person injured may include in the damages sued for, not only the amount which plaintiff has already incurred the liability to pay for medical or surgical treatment, but also the reasonable expense of. such future treatment as may be reasonably necessary in consequence of the injury. [Sotebier v. Transit Co., 203 Mo. 702, 715, 102 S. W. 651; Curtis v. McNair, 173 Mo. 270, 73 S. W. 167; Ballard v. Kansas City, 110 Mo. App. 391, 395, 86 S. W. 479.] It must follow that, if such future expenses may be sued for and recovered, the same may also be proven in as definite a way as is possible, though the kinds and extent of such future treatments, and the cost thereof are necessarily speculative and 'uncertain. In the Sotebier case, supra, the court, in speaking of this matter, said: “As to what attention she will require during her life and its probable value are matters of more or less speculation. No one can tell how long she will live, what her suffering will be or what amount of medical attention she will require. The jurors are as capable of judging of those matters as any one else could be. [See Curtis v. McNair, 173 Mo. 270.] .... And what we have said regarding the last objection is equally applicable to this one; but we will add that we are entirely unable to see how any witness could, with any degree of certainty, testify as to what medical attention she might require during the remainder of her life. No physician or expert can tell how long plaintiff will live, what her pain and suffering will be, if any; what kind and how often she will need medical treatment nor what such services would be reasonably worth in the future. The most the court can do in such cases is to call the attention of the jury to the injury, if permanent, and if the evidence shows that the character of the injuries is such that the party will probably need medical attention in the future, then tell them that they may allow such sum therefor as the — 263 — evidence and facts in the case show would be just and reasonable for such attention and services.” It is certainly not objectionable when any particular treatment or operation is shown to be reasonably necessary to further show the probable expense thereof; in fact, such evidence renders the amount to be allowed less speculative and uncertain. What we have said disposes of the contention that the verdict rests on no substantial evidence and that no casual connection is shown between the accident and plaintiff’s afflictions. In fact, defendant’s chief contention, as above noted, is that the medical witnesses were allowed to testify that the accident did' in fact cause plaintiff’s injuries instead of leaving it to the jury to so find from the evidence inclusive of the opinions that such accident might or could or was likely to do so. In Porter v. Hetherington, 172 Mo. App. 502, 158 S. W. 469, the alleged injury and cause of the same and the evidence sustaining the casual connection are similar to this case and the court held that there was a case for the jury. The defendant sought, both in the introduction of evidence and by instructions asked, to limit plaintiff’s right to recover to negligence in operating the car derailed. This is based on the erroneous theory that plaintiff’s petition counts on allegations of specific negligence in operating the car. Defendant invokes the doctrine that, although when a passenger is injured by derailment the presumption of negligence arises and a general allegation of negligence is all that is necessary, yet, if plaintiff alleged specific negligence, the proof and recovery must be limited to such specific negligence. [McManamee v. Railroad, 135 Mo. 440, 447, 37 S. W. 119; Orcutt v. Century Bldg. Co., 201 Mo. 424, 443, 99 S. W. 1062; Thompson v. Livery Co., 214 Mo. 487, 113 S. W. 1128.] This petition, however, charges general and not specific negligence. The allegation is that the ear jumped the track by reason of defendant’s — 264 — negligence. The negligence alleged is not limited to-operating the car any more than to the construction of the track or roadbed. [Price v. Metropolitan St. R. Co., 220 Mo. 435, 454, 119 S. W. 932.] Where the relation of carrier and passenger exists, it is sufficient to allege that the car was derailed by reason of defendant’s negligence and that plaintiff was injured thereby; and plaintiff makes out a case of negligence by showing the derailment and attendant circumstances and the burden then shifts to defendant to show that there was no negligence on its part. [Orcutt v. Century Bldg. Co., 201 Mo. 424, 441-2, 99 S. W. 1062.] In such case the defendant is held to the highest degree of care and can only exculpate itself by showing that the accident was occasioned by some inevitable cause which no human foresight or precaution could have averted. .[Clark v. Railroad, 127 Mo. 197, 208, 29 S. W. 1013; Lemmon v. Chanslor, 68 Mo. 340, 356; Hipsley v. Railroad, 88 Mo. 348, 352.] It is also the law that while the burden is not on plaintiff to show any defect or negligence occasioning the derailment and she need not do so, yet, where only general negligence is alleged, it is. not error, as contended here, to permit plaintiff to show specific defects or negligence; and by so doing she is not even deprived of the presumption of negligence in her favor. [Price v. Metropolitan St. R. Co., 220 Mo. 435; 456, 119 S. W. 932.] Appellant makes a further objection that, as it was shown that plaintiff was married some ten years or more prior to the date of this accident and it was not shown by direct evidence that she was divorced or her husband dead, there is not sufficient proof of her allegation as to being a single woman. Plaintiff was referred to as “Miss” throughout the trial and Patterson is her maiden name and not that of her husband. She testified that she had been married but at the trial said she was single. As this fact was not controverted we — 265 — think this is sufficient. Moreover, this fact is not material, as plaintiff was shown to be working for wages and she sues for loss of time in “earning a livelihood,” and the instructions allowed her to recover only for the “loss of earning capacity.” These are proper elements of damages though plaintiff was in fact a married woman. [Nelson v. Railroad, 133 Mo. App, 659, 664, 88 S. W. 781; Snickles v. City of St. Joseph, 155 Mo. App, 308, 311, 136 S. W. 752.] We cannot agree to appellant’s suggestion that, as plaintiff had not paid but only incurred a liability for medical attention, and was insolvent and allowed to sue as a poor person, therefore she should not be allowed for a liability not enforceable against her. It is conceded that it is not necessary that such expense be actually paid, provided a legal liability has been incurred, and we rule that insolvency of the patient is no defense. [Mears Min. Co. v. Maryland Casualty Co., 162 Mo. App. 178, 185, 144 S. W. 883.] Some other errors, most of them not borne out by the record, are complained of but they are not found sufficient to warrant a reversal. It is strenuously insisted that the damages are excessive and we are asked to order a remittitur. This argument is partially based on the fact that it was shown that the shock causing plaintiff’s injuries was not severe and not such as would ordinarily cause any or, at most, only slight injury to the average person; that the plaintiff was already frail and of delicate health and predisposed to the female maladies of which she complains. We may grant that had she been of more robust health and less susceptible to the results-of this shock, she would not have received more than slight temporary injury and that the average woman passenger would .not have been injured as she was. We are not, however, cited to any case holding that this is a defense in a case like this. We think there are and ought not to be any. Defendant is liable to each pus — 266 — senger so injured for Ms or her particular injuries, although the health and physical condition of one passenger may be such that no serious injury results, while to another the consequences are unusually disastrous. [De Maet v. Fidelity Storage, Packing & Moving Co., 231 Mo. 615, 132 S. W. 732; Fetter v. Fidelity & Casualty Co., 174 Mo. 256, 267, 73 S. W. 592.] The physicians differ much as to the extent and duration of plaintiff’s injuries. This trial was had about nine months after the injuries, so that the nature and extent of the same had fairly well developed. Dr. Dorrell testified that the plaintiff is suffering from endometritis ; that a condition of this kind is permanent’ unless relieved by surgical operation of curettement; this operation might not cure; it would be painful and would require hospital treatment. Dr. Boseberry testified that the conditions as found by him. would continue indefinitely; that he knew of nothing that would accomplish much outside of an operation of curettement; if curettement does not cure it might require an entire removal of the womb; she was suffering from endometritis when I examined her shortly before this trial. Dr. Balston, a witness for defendant, who examined her shortly before the trial, said he found a slight granulation in the cervix; that tbe womb was slightly heavier than normal and slightly prolapsed; this inflammation of the cervix and enlargement of the womb we call endometritis; it is not a particularly painful condition; so far as the general health, it makes them feel droopy, as they call it, and feel like tMngs are going to drop out and backaches; they get nervous. Such matters are necessarily uncertain. There was doubtless an honest difference of opinion among those skilled in such matters. There is and can be no standard for measuring the money value of bodily pain and mental anguish, even if the amount and duration of the same could be accurately determined. Much must be left to the good sense and judgment of the jury. All — 267 — verdicts in such, cases are and necessarily must be more or less arbitrary. We see no evidence of passion or prejudice in this case. The verdict received the approval of the trial court. We do not feel that this court should interfere. The judgment is, therefore, affirmed. Robertson, P. J., concurs. Farrington, J., dissents in separate opinion.