Opinion
No. 27938.
December 19, 1950. As Modified on Denial of Rehearing January 19, 1951.
APPEAL FROM THE CIRCUIT COURT FOR THE CITY OF ST. LOUIS, WILLIAM H. KILLOREN, J.
Mattingly, Boas Richards and Lloyd E. Boas, St. Louis, for appellant.
Robert L. Maul, Paul H. Koenig, and William L. Mason, Jr., St. Louis, for respondent.
This is an action for damages for personal injuries sustained by plaintiff, Naomi J. Smith, when a bus in which she was riding as a passenger became involved in a collision with a street car.
Inasmuch as both vehicles were owned and operated by defendant, St. Louis Public Service Company, counsel admitted defendant's liability for the accident, so that the only question to be determined by the jury was the amount of plaintiff's recovery for whatever injury she had sustained.
The jury awarded plaintiff the sum of $5,000. Judgment was entered accordingly, and following an unavailing motion for a new trial, defendant gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.
By the instruction on the measure of damages the jury were authorized to compensate plaintiff, among other things, for such permanent injuries, if any, as they might find she had suffered from the accident.
The only questions on this appeal are whether there was evidence to justify the submission of the element of permanent injuries, and whether, in any event, the verdict was excessive.
The accident happened at the intersection of Goodfellow and Delmar Boulevards, in the City of St. Louis.
Plaintiff was a passenger on a southbound Goodfellow bus, and was standing at the rear exit door preparatory to alighting after the bus had made its left turn into Delmar Boulevard and had stopped at the regular stopping point. As the bus was crossing the street car tracks on Delmar Boulevard, it was struck in the side practically opposite the exit door by a westbound street car. The collision came with great force and violence, lifting the rear end of the bus into the air, and causing the bus to topple a couple of times before it made its way over to the south side of the street.
As a consequence of the force of the impact plaintiff was thrown down the steps with her head towards the door and her feet protruding up into the car. After being picked up and placed upon a seat, she was later carried out on a stretcher and taken to Homer G. Phillips Hospital for emergency treatment. She was detained at the hospital for about two hours, and was then taken to her home, where she was confined to her bed for about two weeks.
Upon her arrival home a call was at once put in for the regular family physician, Dr. George Bernard Key, but due to his absence from the city the call was answered by an assistant, who made a couple of visits before Dr. Key returned to the city. Dr. Key then visited plaintiff on four occasions at her home, and as soon as she was able to be up and about she came to his office for a total of twelve times. The accident had happened on May 5th, and she returned to work on the following June 14th. This was in 1948, and on September 19, 1949, shortly before the case came on for trial, she was examined, at the request of her counsel, by Dr. Cyril W. Schumacher.
The record at Homer G. Phillips Hospital showed only that plaintiff had tenderness and a contusion of the left leg and thigh, and an abrasion of the left knee. There was nothing in the record to indicate that plaintiff had complained at the hospital of any pain in her back and neck. It was explained, however, that the examination made in the receiving room of a hospital may sometimes be rather perfunctory in its nature, with a thorough examination left for the attending physicians in the event the patient is retained for treatment.
Plaintiff herself testified that as the result of her injury she sustained pain in her entire left side as well as in her lower back and the back of her neck. The pain in the back of her neck was severe, and persisted recurrently up to the time of the trial, sixteen months after the accident. The pain appeared to radiate from the base of the neck up into the brain. The pain in her lower back had likewise continued intermittently, and she still had trouble with her left knee, especially if she had occasion to walk rapidly or run, or when going downstairs. In all such instances the leg was inclined to give way, and when going down stairs it was necessary for her to keep near the rail so that she might have something to support her if her leg should fail.
Dr. Key testified that his initial examination of plaintiff revealed a sprain of the neck, lower back, and left knee, and showed contusions of the neck, back, left thigh, and left leg, with an abrasion of the left kneecap. He treated her over the period testified to by plaintiff, and saw her again just a few days before the trial, at which time he found some spasm of the muscles of the back and also of the knee and left leg. The condition in her lower back was in the region of the sacroiliac joint. Asked his opinion as to whether her condition would cause her to have pain in the future, he answered: "In my opinion from the length of time that she was treated, and the nature of the treatment, and since there has been recurrence and continuation of her complaint, in my opinion, the condition is permanent, especially, the sacroiliac sprain and neck condition."
Dr. Schumacher testified that he found tenderness in the back of the neck, especially over the left side. In examining plaintiff's back he could find no particular difficulty when she stood erect, but when she was placed in a supine position and her leg was moved upward and outward, spasticity was found in the muscles of her back and left hip. He stated that a condition such as she had in her neck and back could be extremely painful; and when asked to state whether he was able to form an opinion whether she would suffer pain in the future because of her condition, he replied: "I feel if it has existed this long a time that she will expect some permanent disability, and I feel that this disability will become progressively worse as she gets older."
It is well settled that to warrant the giving of an instruction allowing a recovery for permanent injuries, there must be such a degree of probability of permanency as to amount to a reasonable certainty, and it is not enough if the evidence shows no more than that such a consequence is contingent, speculative, or merely possible. Weiner v. St. Louis Public Service Co., Mo.Sup., 87 S.W.2d 191; Lebrecht v. United Rys. Co., Mo.Sup., 237 S.W. 112; Derschow v. St. Louis Public Service Co., 339 Mo. 63, 95 S.W.2d 1173; State ex rel. Kansas City Public Service Co. v. Shain, 350 Mo. 316, 165 S.W.2d 428.
Much of defendant's complaint upon this point constitutes no more than an argument upon the weight of the evidence relating to the question of permanent injuries. Granting the presence of circumstances in the case which were calculated to minimize the severity of plaintiff's injuries, the question for our consideration is nevertheless not one of the weight of the evidence, but of whether there was substantial evidence, whatever its weight as against countervailing evidence, to justify the inclusion of permanent injuries as one of the elements for which plaintiff might be compensated.
Both Dr. Key and Dr. Schumacher testified that in their opinion plaintiff had sustained some permanent injury in respect to her neck and lower back. According to their testimony the trouble was not merely something which might continue indefinitely into the future, but instead was of a character which might reasonably be expected to last forever, and indeed become progressively worse. The doctors' findings and conclusions were based on their own personal examinations; and it is no objection that in Dr. Schumacher's case he expressed himself as "feeling" that plaintiff might expect some permanent disability. A witness may of course qualify his testimony in such a way as to render it of no probative value. Armstrong v. Croy, Mo.App., 176 S.W.2d 852. However in this instance Dr. Schumacher was undertaking to express his expert opinion, as he was competent to do in his professional capacity; and the form of language he employed did not deprive his statement of evidentiary force. There was substantial evidence for plaintiff upon the question of permanent injuries, and the court did not commit error in including such element in its instruction on the measure of damages.
The remaining question is whether the verdict of $5,000 is excessive.
Plaintiff was thirty-four years of age at the time the verdict was returned, and was employed at the St. Louis Administration Center, Army Finance. It does not appear whether it was in all events necessary that she work, although it was shown that her husband's employment as a professional musician was inclined to be irregular. The important thing is that she did work, and was compelled to do so while subject to pain that would strike her from time to time with such severity as to cause her to "grip onto something to keep from screaming". She had special damages for doctors' bills and the like amounting to $255.
Whatever the dispute in the evidence regarding the extent and consequence of her injuries, counsel are aware that in the performance of our function as an appellate court we must accord plaintiff that view of the evidence which tends most strongly to sustain the award. Jones v. Kansas City Public Service Co., 236 Mo.App. 794, 155 S.W.2d 775. So also must we have due regard for the attitude of the trial judge, whose conception of what was right, induced by what he had personally observed, prompted him to let the verdict stand. Belding v. St. Louis Public Service Co., 358 Mo. 491, 215 S.W.2d 506.
It may be conceded that the jury was liberal in its allowance, but that this was so affords no ground for appellate interference so long as the verdict does not transcend the bounds of what could be regarded as reasonable compensation. Like verdicts have been upheld in cases involving similar injuries. Jones v. Kansas City Public Service Co., supra; Quadlander v. Kansas City Public Service Co., Mo.App., 224 S.W.2d 396. That smaller awards have likewise been made in somewhat comparable situations does not necessarily mean that the jury in this case may be said to have abused its province as a matter of law; and unless we are to substitute our own discretion for that of the jury, which of course we may not do, we can see no justification for this court to hold that the verdict is excessive.
It follows that the judgment rendered by the circuit court should be affirmed, and it is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.