94 Mo. App. 417 | Mo. Ct. App. | 1902
Action for recovery of damages for personal injuries. The petition alleged that on June 5, 1898, and for a long time prior thereto, he was and had been in the employment of the United States as railway postal clerk, on defendant’s train, running from Kansas City to Joplin, Mis
The answer was a general denial coupled with a plea of contributory negligence. There was a trial which resulted in judgment for plaintiff, and defendant appealed.
I. The defendant insists that the trial court erred in denying the demurrer offered by it at the conclusion of the evidence. This contention we do not think should be sustained. The plaintiff’s own testimony was sufficient — barely so — to establish a prima facie case entitling him to a submission. But even if this is so, shall the judgment stand ?
It is 'somewhat doubtful, under the evidence, whether or not the plaintiff was struck in the eye at all with a mail sack or the end of one, but -if such was the fact we think it still more doubtful whether or not the injury complained of was the result of that stroke, or whether or not the stroke was the proximate cause of the loss of plaintiff’s eye. Assuming that the defendant’s baggageman did throw the sack from the truck into the mail car in such a way that it, or the cord used in connection with it, struck the plaintiff in the face or eye, it does not satisfactorily appear from the evidence that from the impact there was any bruise, contusion or abrasion about the eye, or discoloration of the eyelid, nor any congestion or inflammation of that organ nor any excretion of the lachrymal or tear gland. Neither the plaintiff’s helper on the same mail car, nor any of the trainmen, seem to have noticed anything-of this kind, on the day of the alleged injury, nor at any day subsequent thereto.
It appears that on the next day after that of the accident the plaintiff visited Dr. DeLap, an occulist of Kansas City and a witness called by plaintiff, who testified that he exam
Two or three witnesses testified that the plaintiff had stated to them that he had syphilis, another that he had chancroid and to still another that he had gonorrhea. It further appeared that prior to the accident plaintiff had visited Hot Springs, Arkansas, where he consulted a physician who prescribed certain medicines and baths, but the name of the physician nor that of the druggist who filled the prescription, he testified he could not recollect. Plaintiff further testified that before he went to Hot Springs he had an abrasion or sore on his genital organs and had had himself examined for syphilis.
Amongst other witnesses called by defendant to testify were three experts, namely, Doctors Thompson, King and Tyree, who by reason of their great learning and skill had become eminent in their profession, the last of whom had been appointed by the court to examine the plaintiff’s eye. The first of these experts testified as follows:
“Q. If a man were struck on the eyelid with a mail cord, a knot similar to this one, and the blow was not sufficiently*421 hard to leave any external 'evidence of the fact, what would be your opinion as to whether that would result in the loss of the sight of the eye ? A. Well, it depends on how hard the blow was, whether it hit the eyeball, whether it might not injure the eye and not leave a mark on the face. But do you mean to say a trifling blow or a severe blow ? Q. I have described it as well as I can. I said a blow not sufficiently hard to leave any external evidence of the fact that there had been a blow on the outside of the lid. A. Yes, sir; such a blow can make a man blind. Q. Would you think it would be at all probable that a blow of that kind would result in that way ? A. No, sir; not probable. Q. I will ask you to state what would be your opinion if a man called on you to examine his eye, say on the evening of the sixth day of a certain month, and you found no evidence of any thing whatever the matter with it; but the man claimed that he could not see and you dilated the eye and told him to call again the next morning and he called and you examined it again, with such instruments as you have for the purpose, and found slight congestion of the optic nerve, and twelve days afterwards he called again and you examined it and found a fully developed case of inflammation of the optic nerve of the retina, and from that time on it should grow worse until, say, the middle or last of the second month after-wards, and then you found ophthalmia and the eye totally blind, or practically so, what would be your opinion as to whether or not that probably resulted from being struck on the eyelid with a mail cord the day before the first examination ? A. I wouldn’t believe it; I don’t think it could be. Q. I will get you to state whether such conditions as I have described result from other things than blows on the eye ? A. Yes, sir. They very rarely result from a blow and very commonly result from other causes. Q. What. other causes ? A. Well, disease of the kidneys, internal poison of different kinds; syphilis, and sometimes cold, a simple cold sometimes. Sitting in a draught, having a cold draught blow on the eye*422 in some cases will cause it. ... I never heard of a man going to Hot Springs for gonorrhea. Q. Doctor, assuming that a man had a blow on the eye such as I have described, I have not been able to describe it any more minutely than that it was a blow, but not sufficient to leave a discoloration of the lid, and suppose also he had had syphilis, and you would be called upon to exarrfine the eye and found the conditions I have described, what would you say as to what had caused that condition of the eye ? A. I would be very much inclined to think it was the syphilis. Syphilis will do it in seventy per cent of cases. I don’t mean to say that seventy per cent of the syphilitic cases have that inflammation; but that the in-, flammation will be caused by syphilis in a great majority of cases.”
The second testified that: “I do not believe that a blow on the outside of the eyelid with the knot of a mail cord, like this, not sufficiently hard to produce any discoloration, or leave any external evidence of the fact that there had been a blow, could produce blindness in that eye by the next day. I can not conceive of such a thing. Q. Now, suppose a man had come to you on the sixth day of June, 1898, and you examined his eye and could not see anything the matter with it, though he complained of not being able to see out of that eye. You dilated it and the next day you examined it again and found slight congestion of the optic nerve, and twelve days afterwards you examined it again and found a fully developed case of inflammation of the optic nerve and you continued treating him from time to time until the middle to the last of August, when you found atrophy, and reached the conclusion that the sight was gone and there was no use to treat him any further. Would you say that condition could not have been brought about by a blow on the outside of the eyelid with a mail cord ? A. I would say that the very fact of the presence of inflammation in the optic nerve would exclude the idea of a blow. Q. Why ? . A. Simply because blindness
The third: “Erom the examination I made, I found atrophy of the nerve. He is blind in that eye. I can hardly give an opinion as to the cause of it. The condition is there; that is all. That condition comes from constitutional disease, such as syphilis, and from alcohol and tobacco. And there are other things which might produce it; pressure along the nerve from hemorrhage, tumors and things of that sort, either inside or outside. A blow sufficient to fracture the orbit might produce hemorrhage and pressure on the nerve so as to destroy it in this way, resulting in such an appearance as that in after time. That is about all that I can remember. Pos
In rebuttal Dr. Sherrer, an oculist who had been practicing for three years, testified that at the time he had examined plaintiff and found no traces of syphilis and that plaintiff then told him that he had been suspected of having syphilis. The plaintiff testified that while he had caused himself to be examined for syphilis, he was told by the examining physician that he did not think he was ever afflicted with that disease. The plaintiff’s testimony was equivocating and contradicted in many material particulars and is calculated to impress the impartial mind very unfavorably as respects its truthfulness and reliability.
After examining the whole evidence, to much of which we have not been able to more than allude, it is quite difficult to resist the conclusion that the verdict, which was for twenty-five hundred dollars, is so greatly against its preponderance as to imply some prejudice, and such being our conclusion it results that a judgment rendered on such a verdict ought not to stand. Baker v. Stonebraker, 36 Mo. 345; Price v. Evans, 49 Mo. 396; Vautrain v. Railroad, 78 Mo. 44; Rosecrans v. Railroad, 83 Mo. 678; Spohn v. Railroad, 87 Mo. 74; Cannon v. Moore, 17 Mo. App. 92.
II. The plaintiff’s instruction No. 2 told the jury, amongst other things, “that contributory negligence is a defense pleaded by the defendant and must be proven by the defendant by the greater weight of all the credible evidence in the case, and unless you believe the defendant has shown by such,” etc., then defendant has failed to support its defense.
A number of other errors have been assigned for a reversal of tbe judgment but they have been found to be without merit.
In any view of tbe ease that we have been able to take we can not resist tbe conclusion that tbe judgment ought to- be overthrown. We feel that' tbe case disclosed by tbe record is sucb as requires a new trial. Tbe judgment will accordingly be-reversed and tbe cause remanded.