Bales v. Public Service Co.

• Decision Date: 24 June 1931
• Docket Number: No. 28913.,28913.
• Citation: 40 S.W.2d 665
• Court: Missouri Supreme Court
• Parties: CORA BALES v. KANSAS CITY PUBLIC SERVICE COMPANY, Appellant.

40 S.W.2d 665

CORA BALES v. KANSAS CITY PUBLIC SERVICE COMPANY, Appellant.

No. 28913.

Supreme Court of Missouri.

Division One, June 24, 1931.^*

Appeal from Jackson Circuit Court. — Hon. Ben Terte, Judge.

AFFIRMED.

Charles L. Carr, E.E. Ball and E.M. Tipton for appellant.

(1) Instruction 10 is erroneous. (a) For the reason that it imposes a greater duty upon the appellant than is required by law, in that it requires the street car to be started gradually, while the only duty imposed by law is that the street car must not be started suddenly, violently and with an unusual jerk; (b) The instruction is further erroneous because it is in conflict with Instruction 9; (c) The instruction is further erroneous in that it broadens the issues made by the pleadings in the case. Laycock v. United Rys., 235 S.W. 92; Laible v. Wells, 296 S.W. 430; Meyers v. Wells, 273 S.W. 110; Katon v. Rys. Co., 241 S.W. 983; Rhodes v. Mo. Pac., 255 S.W. 1086; Elliott v. Railways. 157 Mo. App. 514; Bailey v. Street Ry. Co., 148 Mo. 140. (2) The court erred in admitting incompetent evidence offered on behalf of respondent, over objection of appellant, in that the respondent's physicians were allowed to testify as to an injury to her sacrum and sacroiliac joint when the same were not pleaded as damages. This is a special element of damage and must be pleaded. Dr. Frazier was allowed to testify that there was a displacement of the sacrum, which broadens the issues alleged in respondent's petition, in that the petition does not allege an injury to the sacrum or sacroiliac joint, and does not allege a displacement to the spine, spinal column or back. Rosenzweig v. Wells, 273 S.W. 1071; Connors v. Rys. Co., 250 S.W. 574; Bowles v. Ry. Co., 271 S.W. 851; Hibler v. Rys. Co., 237 S.W. 1014; McElroy v. Const. Co., 247 S.W. 204; Chawkley v. Ry. Co., 297 S.W. 20. (3) The verdict is excessive, being the result of bias and prejudice on the part of the jury. Briefly stated, practically the only injury respondent received was a fracture to her hip which united as well as could be expected, and on which the respondent was able to walk without any appreciable or noticeable limp eighteen months after the accident, or at the date of trial, and practically the only other injury she complained of was that she was not able to perform all the housework that she had previously done. Sullivan v. Ry. Co., 12 S.W. (2d) 735; Brucker v. Gambaro, 9 S.W. (2d) 918; Lackey v. Ry. Co., 264 S.W. 807; Boyd v. Kansas City 237 S.W. 1001. (4) Instruction 12 is erroneous, as it specifically calls attention to the jury that it may return a verdict for $35,000. The only purpose of mentioning that sum is to cause the jury to return an excessive verdict, as was done in this case. Pope v. Terminal Railroad Assn., 254 S.W. 45; Stahl v. Ry. Co. 287 S.W. 628.

Harry G. Kyle and Walter A. Raymond for respondent.

(1) Plaintiff's instruction number ten was not erroneous. Elliott v. Railway, 236 S.W. 20; Meyers v. Wells, 273 S.W. 113; Dougherty v. Railroad Co., 81 Mo. 325; Laible v. Wells, 296 S.W. 429; Hudson v. Stair Co., 296 S.W. 218; Burdoin v. Trenton, 116 Mo. 358; Cassin v. Lusk, 277 Mo. 663; Ellis v. St. Ry. Co., 234 Mo. 656; Cool v. Peterson, 189 Mo. 175; Jerowitz v. Kansas City, 104 Mo. App. 202; S.W. 490. (2) Evidence of injury to plaintiff's sacrum was properly admitted under the pleadings. Bridges v. Dunham, 183 S.W. 703; Trowbridge v. Fleming, 269 S.W. 615. (3) The verdict is no more than reasonable compensation for plaintiff's injuries. Breen v. United Ry. Co., 204 S.W. 524; Miller v. Harpster, 273 Mo. 605, 201 S.W. 855; Jackman v. Ry. Co., 231 S.W. 980; Manley v. Wells, 292 S.W. 69. (4) There was no error in giving instruction number twelve at the request of respondent. Salmon v. Ry. Co., 197 S.W. 37; Gilchrist v. Rys. Co., 254 S.W. 165; Boyer v. Ry. Co., 293 S.W. 388.

SEDDON, C.

Action to recover damages for personal injuries suffered by respondent (plaintiff) while she was a passenger upon an electric street car controlled and operated by the receivers of the Kansas City Railways Company upon and along Prospect Avenue in Kansas City, Missouri. The receivers of the Kansas City Railways Company were the original defendants in the action. The petition charges the defendant receivers with negligence in the following respect:

"That on November 1, 1925, about seven P.M., plaintiff boarded one of defendants' northbound Prospect Avenue street cars, which had come to a stop at the regular stopping place on Prospect Avenue just south of the intersection of that street and Twenty-third street, both public streets in Kansas City, Jackson County, Missouri; that she paid her fare and became a passenger thereon; that she walked forward into said car; that, when she had reached a point about five feet in front of the rear vestibule of said street car, the agents and servants of the defendants in charge of the defendants' street car negligently started said street car forward with a sudden, violent and unusual jerk, as a result of which plaintiff was thrown backwards out of said car into said rear vestibule, and upon and against the floor of said car, with great force and violence." as a result of which plaintiff suffered certain detailed injuries.

The answer admitted the control and operation of the street car by the defendant receivers, and denied generally each and every other allegation of the petition.

At the commencement of the trial of the action, on June 1, 1927, the respective parties agreed in open court that the Kansas City Public Service Company a corporation, had become the purchaser of the properties of the Kansas City Railways Company, and, by virtue of the terms and conditions of that purchase, had agreed to assume the liabilities of the receivers of the Kansas City Railways Company; that the Kansas City Public Service Company be substituted as the sole party defendant in the place and stead of the aforesaid receivers of the Kansas City Railways Company; that the substituted party defendant voluntarily waives service of process and enters its appearance as the defendant in the cause; and that the Kansas City Public Service Company, as the substituted defendant, adopts the answer and pleading of the original defendants, the receivers of the Kansas City Railways Company.

A trial of the action to a jury resulted in a verdict by nine of the jurors in favor of plaintiff in the sum of $10,000, and judgment was entered against the substituted defendant, Kansas City Public Service Company, in accordance with the verdict of the jury. After unavailing motions for a new trial and in arrest of judgment, the defendant was allowed an appeal to this court.

Since the appellant does not assign error in the refusal of its requested peremptory instruction, in the nature of a demurrer to the evidence, tendered at the close of plaintiff's evidence and renewed at the close of all the evidence, and since it is practically conceded in appellant's printed brief and argument that there was sufficient and substantial evidence to warrant the submission to the jury of the issue of negligence, upon the part of the operatives of the street car, an extensive statement of the evidentiary facts leading up to plaintiff's injury is unnecessary. Briefly stated, the evidence adduced by plaintiff tended to show the following facts: About seven o'clock on the evening of November 1, 1925, the plaintiff, her son, and her daughter, boarded a northbound Prospect Avenue street car, then being operated by the receivers of the Kansas City Railways Company, at the regular stopping place for the reception of passengers at the southeast corner of 23rd Street and Prospect Avenue. They entered the rear vestibule of the standing street car, plaintiff preceding her daughter, and the daughter being followed by plaintiff's son, who stopped for a moment at the conductor's fare box in the rear vestibule in order to pay the fares of the three passengers, which the son deposited in the fare box. Plaintiff stepped from the rear vestible into the body, or main part, of the car, and walked over to the east or right-hand side of the car toward a seat, some five or six feet in length, extending lengthwise with the car and parallel with the middle aisle thereof, with the intention of seating herself. As plaintiff turned around with her back to the seat, preparatory to taking a seat thereon, according to the testimony of plaintiff's witnesses, the car was started with a sudden, violent and unusual jerk or lurch, the force of which threw plaintiff off her feet, and caused her to fall a distance of one or more feet into the rear vestibule of the car, and upon the floor of the rear vestibule.

A passenger upon the car, who was seated near the rear vestibule, and who viewed the occurrence of plaintiff's fall, thus described the same: "Just as she (plaintiff) turned around, just like she was getting ready to sit down, the car gave a lunge, gave a lurch, and threw her back against that iron rod or railing, and she fell back on the back platform. Q. What effect did it have on you, as you were seated there in your seat, as the car started? A. It jerked me over like that way (indicating), jerked me over just like that. Q. Just describe in your own way — not what you thought, nor your conclusion — but just describe how the car started. A. Well, it started out in jerks, more than any other time I have ever noticed it to start when I was riding on them."

The plaintiff's son thus described the starting and movement of the car: "Well, it started with a jerk that was beyond — well, not a common jerk at all, it was just an unusual kind of jerk. It gave that quick jerk; well, it wasn't a jerk, it was a lurch was what it was, and naturally at the end of the jerk it kind of stopped and went on again on its own motion. It didn't just jerk out and lunge smooth, but it made a quick jerk and kind of a jump, and go on, you see, to catch up to...