Opinion
No. 28524
April 21, 1953.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, HARRY F. RUSSELL, J.
Mattingly, Boas Richards and Lloyd E. Boas, St. Louis, for appellant.
Edward W. Fredrickson and William L. Mason, Jr., St. Louis, for respondent.
This is an action for damages resulting from personal injuries. The plaintiff claimed that she was caused to fall from one of defendant's buses when the door closed upon her and suddenly reopened as she was alighting. There was a verdict and judgment for the plaintiff in the sum of five thousand dollars and the defendant prosecutes this appeal.
Sadie McSkimming testified that she was seventy-seven years of age and that she was employed as a seamstress by a cleaning and dyeing company. On February 6, 1950, she had been downtown shopping and was going home on a westbound Page Avenue bus operated by the defendant company, in the City of St. Louis. She lived on West Evans Avenue about a block and a half from a bus stop at Page and Pendleton Avenues. The bus stopped at that corner and as she was in the act of alighting from it, by way of the rear exit, the doors closed upon her and then opened quickly causing her to fall to the street. She said that she was about half way out of the bus when the doors closed upon her and that they were immediately opened. The bus had been stopped some distance from the curb and she fell into the street between the curb and the bus.
Two men assisted the plaintiff to the curb where she sat down. The bus had started westward after she fell, but it stopped and the driver came back to inquire of her her name and suggested that she go to a hospital. She did not think she was seriously injured but she could not straighten her back. She finally managed to get to her feet and walked home but she could not straighten up.
When plaintiff reached home she went to bed and she was unable to move for two days. She had pain all over her body and because of her back she could not lift herself. On February 9, she was taken to the City Hospital. She remained in the hospital for about three weeks and did not return to work until the latter part of April, 1950. Her work was on an hourly basis and she earned $32.50 a week. She stated that she was unable to lift heavy garments as she had been accustomed to do in connection with her work, because her back bothered her when she attempted it. She said that she had pain in her back almost every day but that there was some improvement in it.
The records of the City Hospital showed that Mrs. McSkimming had three broken ribs and a "possible low back sprain." These records disclosed that she suffered from considerable pain at the time of her admission, especially on motion, and that the pain in her back was the most severe. The records also stated that the plaintiff complained of pains in her chest for about two weeks but did not complain of pain in her back after the first two days in the hospital. It was further recorded that she had been kept in the hospital for "twenty-four days not because of the fractured ribs but because of an adenocarcinoma of rectum for which an abdominoperineal resection was done in April, 1947."
Mrs. McSkimming had no medical care after leaving the hospital until November of the same year when she fell on the steps of her home and was again taken to the hospital. On this occasion she was seen by a neighbor lying in what appeared to be an unconscious condition and the neighbor called the police who took her to the hospital. Plaintiff stated that the only injury she sustained on this occasion was that her face was cut by her eyeglasses being broken when she fell.
Plaintiff was examined by a Dr. Mueller shortly before the trial of the case, who found her complaining of pains in her chest and pain in the lower back. He found an angulation of the lumbar spine that was not normal and that the back motion was impaired in all directions. He examined X-rays that had been taken after her fall from the bus in February and found a compression fracture of a lumbar vertebra. He concluded, from his examination and his study of the X-rays, that the injury to her spine was caused by her fall in February, 1950, as she was alighting from the bus. He stated that she would continue to have discomfort and weakness in her back because of the condition and that strain or work could make it much worse.
The defendant put on a number of witnesses who had been passengers on the bus at the time, who testified that the doors of the bus did not close upon the plaintiff and that she fell after alighting from the bus. The operator of the bus testified that by means of mirrors with which the bus was equipped he could see the steps by which passengers leave and that the plaintiff was clear of the bus and upon the street before he closed the doors and started. He stopped the bus because some one shouted when the plaintiff was seen to fall.
The defendant also called a Dr. Ambrose, who said that the X-rays taken at the City Hospital did not reveal a compression fracture of any vertebra, but he said that X-rays taken in 1951 did reveal a compression of the first lumbar vertebra.
It was upon the foregoing evidence that the verdict for the plaintiff in the sum of five thousand dollars was returned. The defendant by this appeal asserts that the case was erroneously submitted to the jury on the res ipsa loquitur doctrine. Before stressing that point, however, it is asserted that the instruction contains a charge of specific negligence. Following a requirement to find that the plaintiff was in the act of alighting when the doors closed upon her, the instruction continues "and if you further find and believe from the evidence that the said movements of the said door were sudden, and without warning to the plaintiff; * * *". The objection raised to this phrase is that a failure to warn is specific negligence and that there is nothing requiring the jury to find that the failure constituted negligence. We do not, however, so construe the words, for the same point was considered by this court in Crupe v. Spicuzza, Mo.App., 86 S.W.2d 347, loc. cit. 349, wherein we said:
"Nor does the charge that all this was done `without warning' serve in anywise to vary our conclusion, the reference to the lack of warning meaning no more than that plaintiff was afforded no knowledge of what was about to happen, and not purporting to specify any act of negligence on defendant's part in failing to warn."
Passing to the question of whether or not the evidence brought the case within the res ipsa loquitur doctrine, we are cited to Fuller v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 675, wherein we held that the opening and closing of the doors of a bus at a regular stopping place was the act of the operator and that any other conclusion would be a mere conjecture. In that case we were following the conclusions reached in the case of Williams v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 659, wherein we held that a rapid acceleration of the speed of a streetcar causing a sudden jerk raised a reasonable inference that the operator in charge of the controls was negligent and that since it therefore made a prima facie case of specific negligence, res ipsa, being a rule of necessity, could not be invoked. In reaching that conclusion we relied upon the cases of Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599, and Hill v. St. Louis Public Service Co., 359 Mo. 220, 221 S.W.2d 130. The Williams case was transferred to the Supreme Court, and in Williams v. St. Louis Public Service Co., Mo.Sup., 253 S.W.2d 97, loc. cit. 102, it was held:
"Appellant insists that, if the evidence is sufficient to make out a submissible issue or prima facie case as to any specific negligence of the defendant which may have been the proximate cause of his injury, the cause may not be submitted under the res ipsa loquitur doctrine. Such is not the rule in this state. The applicable rule appears from the cases above cited. The pleadings and evidence may be such that a cause may be submitted on either general or specific negligence at plaintiff's election. Submission under the res ipsa loquitur doctrine may not be denied, unless specific negligence, the real or precise cause is definitely shown by direct evidence. Anything that may have been said in Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599, 603; or in Hill v. St. Louis Public Service Co., 359 Mo. 220, 221 S.W.2d 130, 133, indicating the contrary was unnecessary to the decision in said cases and should not be followed."
Consequently our statement in the case of Fuller v. St. Louis Public Service Co., supra, upon which the defendant relies, should not be followed and, contrary to defendant's contention, the instant case was properly submitted upon the res ipsa loquitur doctrine.
A point is raised relating to the admission of hearsay evidence. The circumstances giving rise to this point came about when the attorney for the plaintiff took the witness stand for the purpose of explaining the absence of a Dr. Wennerman who had examined plaintiff. He testified that he had had the plaintiff examined by Dr. Wennerman and that after the case was ready for trial he called Dr. Wennerman's office. At this point the attorney for the defendant interposed an objection, stating: "I object to anything about Dr. Wennerman. It is hearsay." After some colloquy between counsel and the court, the witness was allowed to proceed and he continued:
"I called the doctor's office. He was not there. I called his home and learned that the doctor was at home confined to his bed, ill and he could not leave his home. After that, then I suggested to Mrs. McSkimming and recommended to her that she be examined by Dr. Robert Mueller. That's all that I want to testify to. Other than that I have a report from Dr. Wennerman which, if agreeable, I would like to read."
Certainly any conversation that counsel may have had with the physician, members of his office staff, or family, were purely hearsay, but since the physician's office associate who was treating him was later called to the stand and testified that Dr. Wennerman was confined to his home by illness, it does not appear that the testimony erroneously admitted was in any way prejudicial.
However, another point is raised in relation to the concluding sentence of the quoted testimony, "Other than that I have a report from Dr. Wennerman which, if agreeable, I would like to read." At this point counsel for the defendant stated, "I object to the report", after which counsel for the plaintiff replied: "I will withdraw it. It is not admissible." Counsel for the defendant then requested a mistrial on the ground that the jury might feel that the contents of the report should have been admitted. Thereafter the court stated:
"Gentlemen of the jury, the statement made by counsel that he had a written report from Dr. Wennerman and the following remarks concerning that report will be stricken from the record, and you are requested not to give any consideration whatsoever to a report that both counsel agree to be inadmissible, and in your deliberations you will disregard entirely that part of the witness's remarks about the written report."
It is contended that the statement made by plaintiff's counsel was prejudicial and that the action of the trial court was insufficient to remove the prejudice created by it. Error is assigned in that the court did not declare a mistrial. Such occurrences as took place here have a natural tendency to leave with the jury an impression that something has been withheld from them that the counsel making the offer considered important. This is true when the offer is made in their presence either by design or inadvertence and it unfairly places the objecting counsel in an unfavorable position. However, the immediate withdrawal of the offer by the attorney for the plaintiff, with the statement that the report was not admissible, and the later admonition by the court directing the jury to disregard any remarks concerning the report, was considered adequate by the trial court to have cured any harm that may have been done. As we stated in American Displays v. E. T. Swiney Motors, Mo.App., 240 S.W.2d 732, 736, in considering a like situation and appraising the action of the trial court:
"To what length it should go was a matter it alone could best determine from what it was in a position to observe of any harm that had been done."
We cannot say under the circumstances present that the court did not fulfill its duty. American Displays v. E. T. Swiney Motors, supra; Higgins v. Terminal R. Ass'n of St. Louis, 362 Mo. 264, 241 S.W.2d 380; Aly v. Terminal R. Ass'n of St. Louis, 342 Mo. 1116, 119 S.W.2d 363.
The remaining assignment of error is that the verdict of $5,000 is excessive. It is contended that under the evidence the only injury suffered by the plaintiff was three broken ribs and that the testimony of Dr. Mueller that, in his opinion, plaintiff suffered a compression fracture of the first lumbar vertebra cannot be considered. This proposition is advanced on the ground that the doctor testified that the fracture was due to the accident in 1950 and that the plaintiff in addition to her fall from the bus in February of that year had also fallen on her steps in November. From this the defendant concludes that the injury found by Dr. Mueller might have been the result of either accident. We do not believe that the record leaves any doubt about the accident to which the doctor referred, for he reached his conclusions by an examination of the X-rays taken immediately after the fall from the bus. We cannot, therefore, exclude the injury to her back in considering the amount of the award.
In Kulengowski v. Withington, Mo.App., 222 S.W.2d 579, 586, we stated:
"There is no precise guide for ascertaining the value of the damages sustained in cases of this character. Each case must be determined on its own facts. However, due regard should be given to approved awards in other cases so that approximate uniformity in awards for damages may be maintained."
We have not been cited to, nor does search reveal, any cases wherein the plaintiff suffered three broken ribs and a compression fracture of a vertebra where the sum of $5,000 has been held excessive. In fact for somewhat similar injuries our Supreme Court held that $8,000 was not excessive. Davis v. Kansas City Public Service Co., 361 Mo. 61, 233 S.W.2d 679. Therefore the amount of the judgment should not be disturbed.
For the reasons stated, it is the recommendation of the Commissioner that the judgment be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed.
BENNICK, P. J., and ANDERSON and RUDDY, JJ., concur.