Millirons v. Missouri & Kansas Interurban Railway Co.

162 S.W. 1069, 176 Mo. App. 39, 1914 Mo. App. LEXIS 9
CourtMissouri Court of Appeals
DecidedJanuary 19, 1914
StatusPublished
Cited by4 cases

This text of 162 S.W. 1069 (Millirons v. Missouri & Kansas Interurban Railway Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Millirons v. Missouri & Kansas Interurban Railway Co., 162 S.W. 1069, 176 Mo. App. 39, 1914 Mo. App. LEXIS 9 (Mo. Ct. App. 1914).

Opinion

TRIMBLE, J.

While plaintiff was a passenger on one of defendant’s interurban cars going from Kansas City to Olathe, a head-on collision occurred with another of defendant’s cars coming from the opposite direction. An instant before the collision, plaintiff, seeing what was abont to happen, involuntarily rose in her seat, and the force of the collision threw her violently forward and then backwards against the top part of the seat she had been occupying. The back of the [42]*42seat was torn loose. She struck the top of the hack of the seat on her left áide over the region of the left ovary. The injuries alleged to have been sustained consisted of a cut and bruise on the knee-cap and an injury to her left ovary which resulted in an operation to remove it.

She was undoubtedly a passenger when the collision occurred. The only question of fact in dispute is whether or not the collision caused the condition of her ovary which necessitated its removal. As the injury to the knee was temporary and soon healed, the alleged injury to the ovary became the important and, perhaps only, subject of the contest. Defendant claims the evidence fails to show that the diseased condition of the aforesaid female organ was caused by the collision.

If there is any substantial' evidence showing a causal connection between the collision and the affected ovary, we cannot disturb the.judgment on the objection made, since the jury, by its verdict, has found that the collision caused the injury to said' organ. The jury returned a verdict for $1000 and this sum is entirely too large to have been given for the slight injury to the knee alone.

Defendant does not dispute the proposition that, if there is any substantial evidence to support the verdict, it must stand, so far as the above objection is concerned. Its contention is that a diseased ovary is produced by a number of causes entirely independent of an accident or negligent injury, among such causes being miscarriage, abortion and infection from an imperfectly discharged placenta in childbirth and venereal diseases; that these are the ordinary and frequent causes; that owing to the deep seated location of the ovaries and their protection by the pelvic bones, it is impossible for a blow, such as plaintiff says she re[43]*43ceived, to have injured the ovary without producing an outside mangling or laceration, which was not present in this case. Defendant, therefore, invoked the principle stated in Warner v. Railroad, 178 Mo. 125, l. c. 134, viz.: “If the injury may have resulted from one of two causes, for one of which and not the other, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result, and if the evidence leaves it to conjecture, the plaintiff must fail in the action.” The principle is undoubtedly.correct. But can it be applied to the evidence in this case? As we view it, before this principle can be successfully invoked in any case, the evidence must show the existence in plaintiff of more than one possible cause. Defendant, upon mere proof that it is possible to produce a given injury by other causes than the one alleged, cannot indulge in the conjecture that such other causes may have existed, and, upon this bare surmise, base an application of the principle. He can no more indulge in conjecture as to the existence of the other causes, before they are shown to have been present, than the plaintiff can indulge in guesswork as to which was the real and efficient cause, after more than' one possible cause has been shown to exist. In other words, before defendant can claim the benefit of the. above principle, the evidence must show, not only that it is possible to produce the result by other causes, but also that other causes were present in the particular case. For instance, defendant, shows that a diseased ovary is frequently caused by abortion, miscarriage, and infection either from a venereal disease or from an imperfectly discharged placenta in childbirth. But there is no evidence anywhere, either express or implied, that the plaintiff ever had an- abortion, miscarriage or any other of the infections named. And until there is some evidence that one or more of such [44]*44things existed with reference to plaintiff, the defendant is not in position to invoke the principle above stated. In the case of Smart v. Kansas City, 91 Mo. App. 586, cited in support of the principle, the evidence showed that the injured leg had been infected with tuberculosis prior to the injury alleged against the city, consequently the amputation claimed to have been made necessary by the negligent injury may have been caused by the tuberculosis and not by the city’s negligence. Certainly the court would not have held there was more than one cause for the amputation if no tuberculosis in the plaintiff had been shoion. In Young v. Railway, 113 Mo. App. 636, another case announcing the principle invoked by defendant, the evidence showed that the plaintiff suffered with rupture before the accident and that his other injury was attributable to .rheumatism from which he had suffered for years. Plaintiff did not say positively the alleged negligence in that case augmented the rupture, and as there was evidence that the rupture was in existence at the time of the accident and that on the day before he pitched wheat in a way that might have augmented it, it was a matter of conjecture whether the accident or the pitching of the wheat augmented the rupture. Certainly, if the plaintiff had not been shown to have suffered with rupture and to have pitched hay in a way to aggravate it, and had sworn positively that the negligent-injury increased it, the court would not have held that the cause of the increase was left to conjecture. In another case, Caudle v. Kirkbridge, 117 Mo. App. 412, the evidence showed, not merely that it was possible for an explosion to be caused in several ways, but also that the various different causes were present and could have operated to produce it. In that case also plaintiff did not know what caused it and there was "nothing to show with any more reasonable certainty that the alleged defective tool caused it than [45]*45the other causes shown to have been present. In Shore v. Bridge Co., 111 Mo. App. 278, the defendant attempted to attribute the fall of the plaintiff workman to causes other than the one alleged, but as there was ,no evidence of such other causes being present, the court would not give ear to the suggestion. On page 287, Judge Johnson, who wrote the opinion, said: “To attribute the fall to any other cause (than the one alleged) would be the result of mere conjecture and speculation.” And on the next page, he said: “Conjecture is not permissible in aid of either party.” In other words, defendant cannot, by conjecture, supply other causes, in the absence of any proof of their presence, any more than plaintiff can indulge in conjecture as to what caused the injury when more than one cause is shown to have been present. As there was-no evidence showing that plaintiff, ixf the case before us, had ever been subject to any of the other possible-causes, we do not think the principle invoked by defendant is applicable.

But it is contended that plaintiff’s evidence does not show that the collision caused the injury to the ovary. It is shown that when the collision occurred plaintiff was hurled with such force against the back of the car seat as to tear it from its place and break it.

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Bluebook (online)
162 S.W. 1069, 176 Mo. App. 39, 1914 Mo. App. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millirons-v-missouri-kansas-interurban-railway-co-moctapp-1914.