Thomas v. St. Louis, Iron Mountain & Southern Railway Co.

173 S.W. 728, 187 Mo. App. 420, 1915 Mo. App. LEXIS 285

• Court: Missouri Court of Appeals
• Decided: January 30, 1915
• Status: Published

Opinion

STURCIS, J.

Plaintiff, a girl about twelve years of age, brings this suit by her curator, designated in the record as guardian, for personal injuries alleged to have been inflicted by reason of defendant’s negligence in the manner of assisting or causing her to alight from defendant’s passenger train at Williamsville, Missouri. The injury is alleged and by the evidence introduced by plaintiff shown to have been caused in this manner: The plaintiff with her mother and other children of the family went from their country home to "Williamsville, Missouri, to attend a Fourth of July celebration in 1913, and for that purpose took passage on the passenger train in question. There were a considerable number of passengers getting off at that place'and when the train stopped, plaintiff, with her mother, went forward in the chair car, where they were riding, to the platform between the coaches in order to descend the car steps to the station platform. The defendant’s brakeman was at the foot of the steps assisting the passengers, especially women and children, to alight. The passageway was somewhat congested and when the plaintiff had passed out of the coach and reached the top of the steps leading down to the platform, the brakeman reached up, took plaintiff by the hand and, instead of assisting her to walk down the steps, said: “Jump way out, little girl.”' The plaintiff obeyed and jumped from the platform of the car to the station platform, a distance of four or five feet. Plaintiff says the brakeman, when he told her to jump, pulled or jerked her somewhat forward and then let go of her before she alighted. The result was that plaintiff sprained her ankle. She walked away, limping somewhat, complained of her ankle hurting her and while staying at the picnic several hours and moving around she was limping and complaining of her ankle. There was no external injury and the injury was not thought to be serious and on plaintiff’s return home she was kept quiet and some home remedies applied. The ankle became inflamed and swollen and this gradually extended towards the knee. When medical aid was summoned in a few days, the physician thought it was nothing more than a severe sprain. It soon developed that the periosteum of the ankle and leg was affected and the injury developed into a malignant, painful and dangerous condition, affecting the leg from the knee down. The leg had to be lanced a number of times, discharging large amounts of pus, and the bone became diseased and sloughed off and at the time of the trial, more than seven months after the injury, the leg, far from being healed, was diseased, deformed and permanently weakened. The jury returned a verdict for $4000, and the above details of the injury are given in answer to defendant’s contention that the verdict is excessive. We do not think so.

The plaintiff requested no instructions and none were given except those requested by the defendant. All the instructions requested by defendant were given, except a demurrer to the evidence.

The demurrer raises the point that where the injury complained of may have resulted from one of two or more causes, for one of which defendant is liable but not for the others, it devolves on the plaintiff to prove with reasonable certainty that the injury did in fact result from that cause for which the defendant is liable. [Warner v. Railroad, 178 Mo. 125, 77 S. W. 67; Beebe v. Transit Co., 206 Mo. 419, 103 S. W. 1019.] Defendant claims that plaintiff’s evidence does not measure up to this requirement of the law because it was shown that plaintiff had received other injuries to this same leg and the evidence tended to show that the real and what defendant denominates the proximate cause of the injury is tuberculosis. The argument is that as tuberculosis is a germ disease and may result from a variety of causes, that is, the germs, or more learnedly the tubercle bacilli, may enter infected tissues from a variety of sources and causes and under a variety of circumstances, it is purely speculative to say that the tubercular condition of the plaintiff’s leg was caused by the sprain. In answer to this we find that the three learned medical men who examined plaintiff’s diseased leg do not agree that the conditions they found were tubercular at all. They more nearly agree that if the disease is tuberculosis of the bone and tissues surrounding the same, that such condition could be caused by a severe sprain of the anide and this without any abrasion of the skin or external injury, and that such condition would develop several days after the sprain. The scientific explanation attempted is that tubercular germs are in the air and in all human and animal bodies at all.times in greater or less numbers. Whenever any portion of the body becomes injured, weakened or diseased, these soldiers of destruction make an attack or “drive” on the weakened spot and in proportion as nature is not able to resist the same destruction ensues. In this way a sprain causing more or less laceration and breaking of the tissues and congested and impaired circulation offers a weakened point for attack. It is sufficient to sustain the verdict that the . evidence showed that in this particular case the plaintiff’s ankle was sprained! and that swelling and abscesses and sloughing off of the bone did follow in apparently natural sequence and without any known intervening independent cause and that from their learning and experience some, at least, of the medical men testified that in their opinion these later symptoms could and did grow out of and result from the sprain of the ankle [MacDonald v. Railroad, 219 Mo. 468; 481, 118 S. W. 78; Seckinger v. Manufacturing Co., 129 Mo. 590, 603, 31 S. W. 957; Poumeroule v. Cable Co., 167 Mo. App. 533, 538, 152 S. W. 114.] One of the physicians mentioned as giving this evidence is the one who treated the injury from very near the beginning and admitted that in the beginning he thought there was nothing-more than a sprain. If the defendant means to have us do so, we decline to hold the germs responsible for this injury on the ground that they were the proximate cause thereof and that the sprain, caused by defendant’s negligence, was only the remote cause when such sprain' produced and brought about the conditions under which the germs.did their work. [Seckinger v. Manufacturing Co., 129 Mo. l. c. 604, 31 S. W. 957; Arnold v. Maryville, 110 Mo. App. 254, 260, 85 S. W. 107.]

Granting' that the later developed condition of the leg was tubercular, yet, if this tubercular injury followed from and developed out of the sprain of plaintiff’s ankle as the exciting cause, then the fact that plaintiff was predisposed to tuberculosis, as stated by one witness, or that her physical condition was- such as to yield more readily to the ravages of tubercular germs and thereby her injuries resulting from this sprain were greater or different in degree than is usual or to he expected from such cause furnishes neither a defense nor mitigation of damages. [Patterson v. Traction Co., 178 Mo. App. 250, 265, 163 S. W. 955, and cases- there cited; Neff v. City of Cameron, 213 Mo. 350, 356, 111 S. W. 1139.] It was shown, however, that while tuberculosis is hereditary, plaintiff’s family and ancestors were not thus afflicted so far as known. The former injury on which defendant lays some stress occurred some weeks previous to the sprain in question and was only a slight flesh wound near the knee, caused hy being cut with a piece of glass. Plaintiff’s evidence shows that this injury healed- readily and the location of this injury, as well as the evidence concerning its nature and cause, convinced the jury, as it does us, that the injuries sued for here did not result from that cause. The defendant’s evidence disproves any injury to plaintiff at the time and in the manner detailed hy her. This, however, was clearly a question for the jury. We also think the evidence is clearly sufficient to justify the finding that the injuries sued for were caused and grew out of the sprain of plaintiff’s ankle. [Hartzler v. Railway Co., 140 Mo. App. 665, 672, 126 S. W. 760.]

The defendant also complains that certain questions- asked and answered by the medical witnesses called for conclusions of the witnesses invading the province of the jury under the rule announced in Holtzen v. Railroad, 159 Mo. App. 370, 140 S. W. 767; Roscoe v. Street Ry. Co., 202 Mo. l. c. 594, 101 S. W. 32; Wesner v. Railroad, 177 Mo. App. 117, 163 S. W. 298. The questions and answers complained of are these: ‘' Q. Did the condition of her leg at that time and the present condition of it develop from what you considered at first to he a sprained ankle? A.. Yes, sir. . . . Q. Now, doctor, I will ask you if it is likely that an injury might occur that would produce a condition that was developed in this leg, and at the time it was produced that it would not follow would be serious, and if it was likely that an injury though thought to he slight in the beginning, would develop into this kind of an injury later on? A. Yes, sir; that is true.” The first question was propounded to Dr. McGee, who treated the injuries in question and the question can hardly be called hypothetical. [Hartzler v. Railway Co., 140 Mo. App. 665, 126 S. W. 760.] Moreover, he had previously testified, without objection: “Q. Well, doctor, what did you find wrong? A. Well, in a few days — I think maybe about the second or third day — a severe inflammation set up in the leg; started in the neighborhood of the joint and extended up the leg. I taken it to be periostitis, and the abscess developed. Q. From what was that caused, doctor? A. Well, it was caused from the sprain.” The second question mentioned is clearly not subject to the criticism offered.

It is next contended that the guardian bringing this suit for plaintiff was without authority to do so. It appears that both of plaintiff’s parents are living and that she was possessed of no property or estate other than this claim for personal injuries. The parents presented a motion in the probate court to have a guardian, or more properly á curator, appointed for the purpose of bringing this suit and waived their own rights to such appointment. The probate court made an order appointing the present guardian. In doing so the court doubtless acted under section 302 and 464, Revised Statutes 1909. The defendant questions the power of the probate court to make this order on these facts and the consequent rights of the guardian to maintain this suit.

It should he noted that in bringing a suit by a curator, such curator does not sue to recover in his own name as such, but the suit is in the name of the infant and the recovery is by the infant. In this respect a curator differs from an administrator. [Webb v. Hayden, 166 Mo. l. c. 50, 65 S. W. 760; Judson v. Walker, 155 Mo. l. c. 179, 55 S. W. 1083.] Our statute, section 1739, provides' that suits by infants may be commenced and prosecuted by guardian or curator, or by next friend. Without going into the question raised, we must deny the effect of defendant’s contention for two reasons: „(1) The power and jurisdiction of probate courts in appointing curators, where such courts have acted in doing so, cannot be questioned in a purely collateral proceeding. [Green v. Tittman, 124 Mo. 372, 375, 27 S. W. 391; Vermillion v. Le Clare, 89 Mo. App. 55, 61; Richardson v. Busch, 198 Mo. 174, 180, 95 S. W. 894.] (2) There has been a statute in force in this State for many years forbidding appellate courts to stay, reverse, or impair judgments in favor of infants merely because the infant appeared in the suit by attorney only. It was held in Robinson v. Hood, 67 Mo. 660, that: “The statute would seem to be broad enough to reach a case of this sort, where the judgment goes in favor of the infant, even if the appearance by curator was unauthorized.” Holton v. Towner, 81 Mo. 360, 367, is to the same effect.

The judgment will, therefore, be affirmed.

Robertson, P. J., and Farrington, J., concur.