(dissenting).
In the original opinion, this Court deemed it advisable, in view of another trial, not to discuss in detail the testimony bearing on the issues involved. We reversed the case and remanded it for new trial, on the assignments that the court should have limited the recovery on aggravation of appellee’s prior ailments, and a new trial should have been granted to meet the ends of justice. In view of the opinion of Justice LOONEY on motion of appellee for rehearing, which motion reveals nothing that was not fully reviewed by each member of this Court on original submission; and in the light of the reversed position of my Associates, it might be well here to again review the pleadings and testimony bearing on the assignment discussed in the original opinion:
As a direct and proximate result of defendant’s alleged negligence in putting the street car in motion, in an unnecessarily violent manner, that is, “in starting same with such a sudden jerk,” plaintiff alleged that she suffered injuries in all respects usually incident to personal injury damage suits, and further, “that a chronic arthritic condition of the lumbar region of her back was aggravated, in that, prior to such injury, such condition caused her no pain or incapacity, but that, immediately following the injuries aforesaid, such condition became acute and has caused her much pain and physical suffering and has incapacitated her to the extent hereinafter shown; that, but for the injuries detailed in the first paragraph hereunder (paragraph 4), such chronic arthritic condition would not have become acute or resulted in the incapacity hereinafter set out.”
It will be seen that plaintiff seeks recovery for alleged injuries to her leg, back, muscles, ligaments, nerves, and internal organs, kidneys and bladder, as such injuries aggravated the prior condition of her back. The testimony is that all symptoms of injury, if any she suffered, except the subjective symptoms of injury to her back, had completely disappeared within three or four weeks. Dr. Redlinger testified:
“Q. Doctor, you treated her for some time after that, did you not? A. Yes, I made five or six calls at her home. * * *
“Q. Did you prescribe for her ? — During that time ? A. I prescribed medicine. * * *
“Q. I see, now during the first week that you treated her, Doctor, state what the nature of her urine was. A. The first week it contained a little bit of blood.
“Q. Doctor, would that indicate an internal injury of some character? A. No, —yes.
“Q. It would come from the organ of the kidney? You say that injury has healed, the injury that caused the blood to pass from the bladder has healed? A. Yes.”
Dr. Nash testified: “Q. Did you examine her at that time, May 1, 1939? A. Yes.
“Q. ' What did your examination consist-of? A. It consisted of an examination of her spine, the part complained of, and checking all of her reflexes and testing her sensations and ability to feel and *908strength of the muscles, etc.; and an examination of her urine.
“Q. State whether or not any X-Ray was made at that time. A. Yes, I had Dr. Kohen to make X-Rays of her. * * *
“Q. Tell the court and jury, please Sir, what your examination disclosed. A. The examination disclosed stiffness of her back and what I interpreted as severe pain each time she attempted to move it, on account of muscle rigidity.
“Q. Where was that pain — in her back? A. In the small of her back; what you call the small of the back; or in the lumbar region * * * i
“Q. What else, if anything, did that examination reveal? A. I don’t remember of anything else. The X-Ray examination, of course, revealed—
“Q. I will get to that; what did it reveal? A. It showed a chronic arthritic rheumatism of the spine * * *
“Q. By chronic, you mean that it was a condition that had existed for some time? A. Yes. * * *
“Q. Does an arthritic condition in a patient’s back always give them trouble. A. No, sir.
“Q. State whether or not the blow which your patient in this case described to you as having been received at the time of her injury was of a nature which would be calculated to aggravate the arthritic condition which the X-Ray reveals. A. It would, yes. * * *
“Q. How long, in your opinion, would that disability continue? A. That is very hard to say. It is almost indefinite when one of those arthritic spines gets started up, and I don’t know of any remedy that will cure them, and I don’t know of anybody else that does. * * *
“Q. You said you found some pain? Which side was that? A. She had pain on both sides of her back. Both muscles are rigid. * * *
“Q. It (a blow) didn’t cause Ida May Hendricks’ arthritis? A. I don’t think it did, no.”
Bearing on the issue, Dr. Nash further testified: “Q. A blow doesn’t cause arthritis, does it? A. It may have.
“Q. It didn’t cause Ida May Hendricks’ arthritis? A. I don’t think it did, no.
“Q. As a matter of fact, she had had that before January 13, 1938, in your opinion. A. I think she had, yes.
“Q. Can you tell how long? A. No, I cannot.
“Q. Can you look at that picture and give us an opinion as to how long it takes those little spurs to form out there? A. No, I don’t think anybody can tell you that. Sometimes it takes years, and I have known cases that occur over a few months time. Just exactly how long, I don’t think anybody can tell you. * * *
“Q. Aren’t they pretty good size spurs? A. Yes, but not as bad as I have seen.
“Q. Those are what you might call fair size? A. I would hate to have them in my back.
“Q. Will you tell the jury whether or not they cause pain, those spurs ? A. They will, yes.
“Q. Now, those spurs that are on there at the places you pointed out on the X-Ray — are those the only places where the calcium collects? A. Well, we might find it in all other parts of the body to a certain extent.
“Q. And that causes stiffness, doesn’t it? A. If it is there, it usually does, yes. * * í¡í ft
The substance of Dr. Nash’s testimony is, that the spurs (calcium formation about the joints of Ida May Hendricks) were large, causing stiffness and pain, and that there is no known cure for such arthritic condition; also, that such was her condition at the time she claimed to have been hurt. Then, if that be true, and the jury had a right to believe the testimony of Dr. Nash, Ida May Hendricks suffered pain and stiffness of her back and other parts of her body prior to the injury, and will continue to suffer pain and stiffness in the future as the result of arthritis, for which the defendant is in no way responsible. Certainly, the jury should have been instructed to exclude in their verdict all such pain and stiffness resulting from the arthritic condition. If Ida May Hendricks had an arthritic back, stiffened by calcium formations, and such was calculated to cause pain, as Dr. Nash’s testimony reveals, then certainly the defendant should not be required to respond in damages for nature’s ill effects. Ida May Hendricks was the only witness who could or did testify as to pain. All other claimed injury had cleared up. So, Ida May being an interested witness, the record presents an issue as to whether the pain was caused by her fall, or- was the natural effect of her ar*909thritic condition. She fell over the riser from the vestibule into „ the main body of the street car, onto a perfectly smooth floor. It is inconceivable that a strong, healthy woman, fifty-four years of age, accustomed to hard labor, as she alleged in her petition, would injure her back by falling on her stomach. We recognize that such issues are for the determination of a fact-finding agency, the court or jury; but, when the facts and circumstances preponderate against such findings, the law imposes upon the court the duty of granting a new trial, or even a second new trial, to meet the ends of justice.
It will serve no useful purpose to say more. A new trial should have been granted for reasons revealed in this Court’s original opinion; I therefore respectfully dissent.