Parker v. St. Louis Transit Co.

• Citation: 83 S.W. 1016,108 Mo. App. 465
• Parties: PARKER v. ST. LOUIS TRANSIT CO.
• Decision Date: 29 November 1904
• Court: Court of Appeal of Missouri (US)

83 S.W. 1016

108 Mo. App. 465

PARKER v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

November 29, 1904.

CARRIERS — INJURY TO PASSENGER — PROXIMATE CAUSE — NEGLIGENCE — INSTRUCTIONS — REMARKS OF COUNSEL — APPEAL.

1. Where a passenger was thrown from a street car through the negligence of the employés, by a sudden start of the car, and fell between the feet of a mule hitched to a coal wagon, and the mule became unmanageable, causing the wagon wheel to pass over the passenger, the negligence of the street railroad was the proximate cause of the injuries.

2. In an action by a passenger against a street railroad for injuries occasioned by being thrown from the car through the negligence of the defendant's servants, where the court charged, at defendant's instance, that if the jury were unable to determine whether plaintiff was precipitated from the car by being pushed off by persons getting on or off, or by being thrown therefrom by a sudden motion of the car, then the plaintiff was not entitled to recover, and that if plaintiff attempted to alight, and was thrown in alighting, while the car was in motion, then the verdict should be for the defendant, it was not error to refuse to charge at defendant's instance that if the plaintiff fell while the car was in motion, and before it had come to a stop for the purpose of discharging and taking on passengers, plaintiff was not entitled to recover.

3. Where the testimony of plaintiff's attending physician was that the plaintiff was then in

an abnormal state, her recovery not complete at the time of the trial, and that her disability might be permanent, and that she was then under medical treatment, which might be continued, a charge which included among other elements of compensation reasonable and fair compensation for such medical attention as she had been put to, or the jury believed would be required in the future, as the result of the injury, was not erroneous.

4. In an action by a passenger against a street railroad for injuries, plaintiff's counsel, in summing up, said: "You heard the statement of the jurors on their voir dire in this examination — how, out of eighteen men, three of them were either injured or had claims." On defendant objecting, the court declared the statement improper, and told plaintiff's attorney that it should not have been made, and added that there was nothing except the testimony in the case before the jury, whereupon plaintiff's counsel said: "I retract it, and also beg your honor's pardon, and the jurors'." Held, that the refusal to grant a new trial because of the incident would not be interfered with on appeal.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Eileen A. Parker against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. Hibbard & Whitehill, for respondent.

REYBURN, J.

The declaration of plaintiff's cause of action was prefaced by the introductory allegation of the relationship of common carrier and passenger existing between the parties on the Jefferson avenue line, in the city of St. Louis, with the purpose on her part of transferring at Olive street to another line of defendant's system, and, continuing, charged: "That as the car approached said Olive street she signaled the servants and employés of the defendant corporation in charge of said car to stop said car at Olive street, whereupon, in response to her signal, said car came to a stop at the northeast corner of Olive street and Jefferson avenue, whereupon she attempted to alight from said car, but, before she had time to leave the same, the defendant, by its servants and employés in charge of said car, negligently and without warning to the plaintiff started said car with a sudden jerk, whereby plaintiff, without fault or negligence on...