Stoebier v. St. Louis Transit Co.

• Decision Date: 14 May 1907
• Citation: 102 S.W. 651,203 Mo. 702
• Parties: STOEBIER v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

102 S.W. 651

203 Mo. 702

STOEBIER v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. TRIAL — INSTRUCTIONS — ASSUMPTION OF FACTS.

Instructions may assume plaintiff lost wages as a result of her injuries; the uncontradicted testimony of herself and others being that she was earning a certain amount per month when she was injured, there being no evidence that she had been able to labor or earn wages since the accident, and all her evidence tending to show that she had been totally unable to work since she was injured.

2. DAMAGES — PERSONAL INJURY — MEDICAL ATTENDANCE.

One's right to recover, as part of the damages for her personal injury, the expense of medical attendance made necessary by the injury, is not affected by the fact, alleged and proved, that she has paid therefor.

3. SAME—FUTURE ATTENDANCE.

Testimony in a personal injury case that plaintiff is still under the charge of physicians, is a helpless suffering paralytic, and will never improve, but will continually grow worse, authorizes recovery for reasonable and necessary expenses for medical attention which she may

incur in the future; it being impossible to state with certainty what they will be.

4. WITNESSES—IMPEACHING EVIDENCE.

A physician, a witness for defendant in a personal injury case, having testified that plaintiff, when she left the hospital, was able with his slight assistance to walk the length of the long hall in the hospital, and having on cross-examination been asked if he did not pull or drag plaintiff the length of the hall, and if a nurse did not protest, and, having denied this, plaintiff, on rebuttal may, for the purpose of impeaching him, testify that he dragged her up and down the hall, and that a nurse told him to bring her to bed, where she belonged.

5. TRIAL — ADMISSION OF EVIDENCE — LIMITING EFFECT.

Evidence being competent for any purpose, it should be admitted when offered, and the opposing party, if desiring its effect to be limited, should ask an instruction for that purpose.

6. SAME—RULING ON MOTION TO STRIKE EVIDENCE.

The statement of the court, on refusing a motion to strike out the testimony of a witness, that "the jury will determine what weight is to be given this testimony," is proper; this not being a comment on the testimony, but the statement of a reason for not striking it out.

7. DAMAGES—PERSONAL INJURY — EXCESSIVE VERDICT.

Under the evidence in a personal injury case, to the effect that plaintiff was a permanent and complete physical wreck, held a verdict for $10,000 damages was not excessive.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Josephine Riegel Stoebier against the St. Louis Transit Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This action was instituted in the circuit court of the city of St. Louis on May 15, 1903, by plaintiff against the defendant, asking $20,000 damages for personal injuries received through the alleged negligence of defendant by prematurely starting a car while she was in the act of alighting therefrom at Broadway and Washington avenue, in said city. The allegations of the petition, in so far as they are material in this case, are as follows: That she was a passenger on a north-bound Broadway car; that, when it reached Washington avenue, it stopped for the purpose of taking on and discharging passengers; that while so stopped she started to alight from the same, and that while so doing defendant negligently and carelessly started said car, thereby throwing her to the ground with great force and violence, and that by reason thereof her spine was violently wrenched, broken, and sprained, and that by reason thereof she was paralyzed in her lower limbs, and rendered utterly unable to stand or walk without support; that she also received severe cuts and bruises on her back and head which caused concussion of the brain, and that by reason of said injuries she is a complete nervous wreck, and will suffer and remain a paralytic and nervous wreck for life; that on account of said injuries she has been and will be throughout life unable to pursue her usual occupation, and that she has expended and will throughout life be compelled to expend large sums of money for hospital fees, nurses, doctor bills, medicine, and transportation fees, such as carriage hire and attendants in going from one place to another. The answer was a general denial and a plea of contributory negligence and carelessness on her part in attempting to alight from the car while in motion at a time and place when and where it had not stopped or slowed down for the purpose of allowing passengers to alight therefrom, and while said car was running at a rate of speed that made it dangerous for her to alight from same. The reply was a general denial of the new matter stated in the answer.

The plaintiff introduced evidence tending to prove: That on the evening of March 8, 1903, about 9:30 p. m., she and her sister, at Broadway and Gratiot street, became passengers on one of defendant's north-bound cars on the Broadway line. That the car was crowded with passengers, some standing in the aisle, some on the platform, and at least one on one of the rear steps of the car. That it was customary for passengers to enter and leave that class of cars at both front and rear doors. That plaintiff and her sister were riding near the front end of the car. That after entering the car it proceeded northward toward Washington avenue, an intersecting street, and that just before reaching the intersection the motorman, who was on the front platform, said to the passengers in that end of the car, "Please step out this way." That the car ran a little further, and stopped at the northeast corner of Broadway and Washington avenue, for the purpose of receiving and discharging passengers, which was one of the usual places for that purpose. That several passengers entered and left the car at that point, at both front and rear doors. That plaintiff's sister and some five or six other passengers preceded her, and that just in front of plaintiff there was an old gentleman who moved slowly and was also alighting from the car. That he, the sister, and the other five or six passengers mentioned safely alighted from the front end of the car. That the old gentleman obstructed the passage of plaintiff and impeded her egress from the car. That she followed immediately after him to the platform and onto the step of the car. That she stepped off, and she immediately attempted to follow him, and, while in the act of stepping from the step of the car to the pavement, the car was suddenly started forward with a jerk and without warning, and thereby threw her to the street with great force and violence, she striking the pavement upon her back and head. That the car stopped a second time in a few feet. That she was rendered unconscious by the fall, and was picked up from the street by a passenger by the name of Daush, and pulled to the sidewalk near the northeast corner of those two streets. That she was unconscious and was unable to stand or walk, and said Daush and her sister picked her up and took her to a drug store on the corner of Broadway and Lucas, a block distance from the point of injury, and she was shaking like a leaf, and appeared to be unconscious. An ambulance was sent for, and she was carried to and placed in it and sent to the city hospital, where she remained that night, and next morning she was taken in a carriage to Mrs. Cavenders' residence, the lady for whom she and her sister were employed at the time of the injury, where she remained one week, and was then taken to St. John's Hospital, where she remained four weeks, and from there she was taken to her brother's home, and later to that of her mother, at Washington, Mo. That her injuries consisted of a large bruise on the head, bruises, and cuts on different portions of the body and a strained or fractured spine and a rupture of the spinal cord. That as a result of said injuries she suffered great physical pain and mental anguish, and was still suffering at the time of the trial. That she has been wholly incapacitated from performing manual labor. That she has been completely paralyzed from the hips down ever since the injury, and had not from that time to the time of the trial stood on her feet or walked a step, and that she would never be able to do so in the future, but was growing and would continue to grow worse. That her lower limbs were becoming atrophied and would continue to do so. That she is and has been ever since the injury very nervous and sleepless and suffering more or less with headache. That the lower bowels are paralyzed, and she cannot, in the natural way, answer to the calls of nature, nor from sensation tell when she should look after herself in that regard, but is compelled to depend upon a clock for that information, and at stated times cause a passage by the assistance of physical means. That she is utterly helpless and cannot go from one place to another unassisted, and that her injuries are permanent. That at the time of the injury she was receiving the sum of $12 per month for her services, together with board and lodging, and had incurred on account of her injuries the sum of $75 for doctor bills, medicines, and nurses, etc. That she was a strong and a perfectly well woman before the injury.

Then the defendant introduced evidence tending to prove that the car in question stopped on the north side of Washington avenue; that while standing there passengers entered and departed from the car, and then it started on north, and when near the center of the block the plaintiff stepped forward and walked off the front end of the car, some of the witnesses stating she stepped off backwards; that the car was running five or six miles an hour at the time, and the place where she stepped off was not at a usual or safe place for passengers to alight; that while plaintiff was at...