Hesemann v. May Dept. Stores Co.

• Citation: 39 S.W.2d 797
• Decision Date: 02 June 1931
• Docket Number: No. 21233.,21233.
• Parties: MINNIE HESEMANN, RESPONDENT, v. MAY DEPARTMENT STORES COMPANY, A CORPORATION, APPELLANT.*
• Court: Court of Appeal of Missouri (US)

39 S.W.2d 797

MINNIE HESEMANN, RESPONDENT, v. MAY DEPARTMENT STORES COMPANY, A CORPORATION, APPELLANT.*

No. 21233.

St. Louis Court of Appeals. Missouri.

Opinion filed June 2, 1931.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Erwin G. Ossing, Judge.

AFFIRMED.

Jones, Hocker, Sullivan & Angert and Ralph T. Finley for appellant.

(1) Under the pleadings and evidence the doctrine of res ipsa loquitur has no application to this case, and no recovery should be allowed plaintiff on that theory. Fuller v. Wurzburg Dry Goods Co., 158 N.W. 1026; Conway v. Boston Elevated Ry. Co., 152 N.E. 94; Russell v. St. Louis & S.F.R. Co., 245 S.W. l.c. 591. (2) The facts in this case do not imply negligence on the part of the defendant as the only reasonable explanation of the plaintiff's alleged injury. Mayne v. Kansas City Rys. Co., 287 Mo. l.c. 248; Thompson v. Railroad, 243 Mo. l.c. 353; State ex rel. Missouri Public Utilities Co. v. Cox, 298 Mo. l.c. 434; Cases supra, Point 1. (3) The rule of necessity applying to the ordinary care of carrier and passenger, which originated the doctrine of res ipsa loquitur, should not be applied to this case under the pleadings and facts in evidence. The movements of the escalator were not so directed by the defendant as to call for such necessity, and the facts and the cause of the injury were just as accessible to the plaintiff as to the defendant, if not more so. Klebe v. Distilling Co., 207 Mo. l.c. 487-489. (4) In view of the accessibility of the escalator to the public, and the facts in evidence, there is no presumption of negligence on the part of the defendant in this case. Yarnell v. Railway Co., 113 Mo. l.c. 579; Cardinale v. Kemp, 309 Mo. l.c. 276; Hamilton v. Railway Co., 318 Mo. l.c. 134; Kane v. Railroad, 251 Mo. l.c. 29; 10 C.J. 1028, 973. (5) The mere difficulty of proving specific acts of negligence is no ground for the application of the doctrine of res ipsa loquitur to this case. Beebe v. Transit Co., 206 Mo. l.c. 441; Wilt v. McCallum, 214 Mo. App. l.c. 335. (6) Plaintiff's instruction No. 1 is erroneous. Meegan v. Railroad, 161 Mo. App. l.c. 48; Price v. Railway Co., 220 Mo. 435; Clark v. Railway Co., 127 Mo. l.c. 207; Faulk v. K.C. Rys. Co., 247 S.W. (Mo. App.) 253. (7) The verdict is excessive, and is the result of passion and prejudice on the part of the jury. Clark v. Mississippi River & B.T. Ry. Co., 23 S.W. (2d) l.c. 179; Lee v. Armour Building Co., 18 S.W. (2d) l.c. 105; Shahlberg v. Brandes, 299 S.W. 836, l.c. 838. (8) Reversible error was committed in the closing argument of counsel for plaintiff and in the court's rulings thereon. O'Hara v. Lamb Const. Co., 197 S.W. l.c. 165; Monroe v. C. & A.R. Co., 297 Mo. l.c. 644; Haynes v. Trenton, 108 Mo. l.c. 133; McDonald & Co. v. Cash & Hainds, 45 Mo. App. l.c. 79; Obuchon v. Boyd, 92 Mo. l.c. 421; Barr v. Railroad, 138 Mo. App. l.c. 477; Mahner v. Linck, 70 Mo. App. l.c. 388; Bragg v. Metropolitan Street Ry. Co., 192 Mo. l.c. 366.

Mark D. Eagleton and Allen, Moser & Marsalek for respondent.

(1) The court properly overruled the demurrer to the evidence. Public policy imposes upon a carrier of passengers the duty to exercise the highest degree of care for the passenger's safety, and raises a presumption of negligence against the carrier upon injury to the passenger by an occurrence which would not ordinarily happen if the requisite care had been exercised. No good reason exists for denying the protection of these rules to a passenger on an escalator, and the same circumstances should call for their application in such a case as in the case of a passenger by any other method of conveyance. For the various applications of the rule see: Roberts v. Schaper Stores Co., 318 Mo. 1190; Luckel v. Century Bldg. Co., 177 Mo. 608; Hensler v. Stix et al., 113 Mo. App. 162; Marker v. Mitchell, 54 Fed. 637, 62 Fed. 139; Lemon v. Chanslor, 68 Mo. 340; Dougherty v. The Mo. R.R. Co., 9 Mo. App. 478, opinion adopted 81 Mo. 325; Yerkes v. Keokuk Northern Line Packet Co., 7 Mo. App. 265; Rhodes v. Mo. Pac. R.R., 213 Mo. App. 515; Vanhoefen v. Columbia Taxicab Co., 179 Mo. App. 591; Heidt v. Peoples Motorbus Co., 9 S.W. (2d) 650; Carlson v. Wells, 276 S.W. 26; Petrie v. Kaufman & Baer Co., 291 Pa. 211. The sudden, violent and extraordinary jerking or jolting of a passenger conveyance, causing injury to one riding thereon, gives rise to a presumption of negligence against the carrier. Carlson v. Wells, supra; Rhodes v. Mo. Pac. R.R. Co., supra; Dougherty v. The Mo. R.R. Co., supra; Heidt v. Peoples Motorbus Co., supra; Petrie v. Kaufman & Baer Co., supra; Stroud v. Booth Cold Storage Co., 285 S.W. 165; Bartlett v. Pontiac Realty Co., 31 S.W. (2d) 279. (2) The court did not err in giving plaintiff's instruction No. 1. It was not necessary that plaintiff have the jury instructed as to the presumption of negligence arising from the extraordinary, unusual and violent jerk and jolt hypothesized in the instruction. In a res ipsa loquitur case an instruction which requires a finding of general negligence against defendant is not improper, and is more favorable to defendant than the law requires. Scott v. K.C. Rys. Co. (Mo. Sup.), 229 S.W. 178; Reel v. Consolidated Inv. Co. (Mo. Sup.), 236 S.W. 43; Orcutt v. Century Building Co., 214 Mo. 35; Olsen v. Citizens Ry. Co., 152 Mo. 426; Cecil v. Wells, 214 Mo. App. 193. The objection that, although the instruction in its opening sentence requires the jury to base its finding on the evidence, it does not repeat said requirement later on in the instruction, is hypercritical. The law presumes that the jurors will decide the case according to the evidence, as their oath requires. Phister v. Gove, 48 Mo. App. 455; Jasper v. Wabash Ry. Co., 24 S.W. (2d) 243. (3) The judgment is reasonable in amount and should not be disturbed. The evidence on this subject should be taken in its light most favorable to respondent. Manley v. Wells (Mo.), 292 S.W. 67; Busby v. Tel. Co. (Mo.), 287 S.W. 434; Westervelt v. Transit Co., 222 Mo. 325, 335. It was the peculiar province of the jury to determine the extent of respondent's injuries and the compensation she was entitled to recover therefor. Hoover v. Ry. Co. (Mo.), 227 S.W. 77; Maloney v. U. Rys. Co. (Mo.), 237 S.W. 509; Sacre v. Ry. Co. (Mo.), 260 S.W. 85. The trial court, in supervising the amount of the verdict, exercises a discretionary power which should not be reviewed on appeal, except in case of obvious abuse. Appeal and Error, 4 C.J., page 830, id. 871-873; Goetz v. Ambs, 27 Mo. 28; Gurley v. R.R., 104 Mo. 211; Laughlin v. Rys., 275 Mo. 459. An appellate court will not interfere with the award of damages unless the amount "is so glaringly unsupported by the evidence as to shock the judicial sense of right, or compel a conviction that the verdict was the result of prejudice, passion or bias." Manley v. Wells, supra; Laughlin v. Rys. Co., supra; Grott v. Shoe Co., 2 S.W. (2d) 785. The verdict is reasonable in comparison with verdicts in similar cases. Joyce v. Telephone Co., 211 S.W. 900; Garfinkel v. B. Nugent Bros. D.G. Co., 25 S.W. (2d) 122; Llywelyn v. Lowe, 239 S.W. 535; Deming v. Wells, 273 S.W. 128; Shuff v. Kansas City, 221 Mo. App. 505; Stephens v. M. & O.R. Co., 285 S.W. 151. (4) The court did not err in ruling on appellant's objections during the argument to the jury. It is the privilege of counsel to comment on the argument of opposing counsel and to draw adverse inferences therefrom. Huhn v. Ruprecht (Mo. Sup.), 2 S.W. (2d) 760. Counsel are permitted "the largest and most liberal freedom of speech" in the address to the jury. It is their privilege to arraign the conduct of parties and to justify or condemn their motives. Nor are they confined in so doing to inferences which the court must say are logical. Gidionsen v. Union Depot Ry. Co., 129 Mo. 392, l.c. 404; Evans v. Town of Trenton, 112 Mo. 390, l.c. 399. The matter is one within the trial court's discretion, which will be reviewed only in case of obvious abuse. Huckshold v. R.R., 90 Mo. 548; Gidionsen v. Ry. Co., supra; Hays v. Miller's Estate, 189 Mo. App. 81-2; Yost v. R.R., 245 Mo. 219.

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff while riding as a passenger on an escalator in defendant's department store in the City of St. Louis. The trial of the cause, with a jury, resulted in a verdict and judgment in favor of plaintiff for $3,000, and defendant appeals.

The accident which resulted in plaintiff's injury occurred on March 22, 1927. Plaintiff went to defendant's store to assist her son, Edwin Hesemann, to select some clothing. She also intended to make some purchases for herself. She met her son at about 11 o'clock in the clothing department on the second floor of the store. The son purchased two suits and a top coat, which he left to be altered. When this business was completed plaintiff and her son walked to the escalator which runs from the second to the first floor. There was an attendant at the top of the escalator. The son stepped on the escalator first and plaintiff followed. She grasped the railings on each side with her hands and rode to a point about midway between the second and first floor. At this point the escalator stopped with a sudden and unusual jerk. She testified that the jerk threw her forward, and her hands were jerked loose from the railing, but she retained her foothold on the step; that the escalator then started up with a second jerk and threw her backward and to her right side and against the railing. She illustrated to the jury the way she was thrown and how she struck the railing. She testified that when she struck the railing it hurt her all the way down on her right side, from her neck down to her hip, and that she became sick and felt like vomiting; that she was so weak she couldn't talk; that as soon as she reached the first floor she went out of the building and vomited in the...