Biener v. St. Louis Public Service Co.

• Decision Date: 07 April 1942
• Docket Number: No. 26001.,26001.
• Parties: BIENER v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

160 S.W.2d 780

BIENER v. ST. LOUIS PUBLIC SERVICE CO.

No. 26001.

St. Louis Court of Appeals. Missouri.

April 7, 1942.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be reported in State Reports."

Action by Henry Biener against the Saint Louis Public Service Company to recover damages for personal injuries sustained by plaintiff while a passenger on one of defendant's streetcars. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

T. E. Francis, O. P. Owen, and Frank X. Cleary, all of St. Louis, for appellant.

Oscar Habenicht, of St. Louis, for respondent.

ANDERSON, Judge.

This is an appeal in an action by Henry Biener against St. Louis Public Service Company, to recover damages for personal injuries sustained by him while a passenger on one of defendant's streetcars, which collided with another streetcar owned and operated by the defendant. The accident occurred at the intersection of Twenty-third and Olive Streets, in the City of St. Louis, Missouri, on September 21, 1940. The trial below resulted in a verdict and judgment in favor of the plaintiff in the sum of $3,750, from which judgment defendant has appealed.

The first amended petition, upon which the case was tried, pleads general negligence charging that while the streetcar on which plaintiff was a passenger was standing, a violent collision occurred between said streetcar and another of defendant's streetcars. The answer of defendant was a general denial.

On the voir dire examination, and in the opening statement, counsel for defendant admitted defendant's responsibility for the collision, but did not admit that plaintiff was injured.

The evidence showed that at the time of the accident the streetcar in question was headed east and was stopped at the intersection of Twenty-third and Olive streets, when it was run into from the rear by another eastbound streetcar. Plaintiff testified that the impact threw him forward against the seat in front of him, and then backward into the seat in which he had been riding.

William Walker, another passenger, testified that when the streetcar reached the intersection of Twenty-third and Olive streets, it came to a stop, and while the car was standing still, there was an impact, a terrific lurch. He stated he could feel the effects of the impact or collision; it was strong and very noticeable; his stomach was "pretty considerably upset" as a result of the collision. He also stated that he did not go to work until the following Monday afternoon; that he was pretty well shaken up, and his stomach was pretty well upset. On cross-examination he testified that he did not see any broken glass in either streetcar, but saw quite a dent in the apron at the rear end of the streetcar on which he was riding. He further stated that there were stop lights on the rear end of the streetcar, which were burning, and that the glass was not broken in either one of them. He further stated that he was not treated by a doctor for any injuries.

Ira L. Gourley, the motorman of the streetcar which was struck, testified for defendant. He stated that when he reached Twenty-third Street he stopped to permit two passengers to alight; that he released the brakes on the car, which was standing still on a downgrade when the collision occurred; that as a result of the collision his streetcar was moved forward about 4 feet. He stated that at the time he was seated on a swivel chair, which had a padded cushion on its back, and that he was not thrown off the chair. There was no glass broken in the streetcar, and no damage was done that he could see. He would not call the collision "quite a jar," but it made some noise.

Cleveland Skaggs, the operator of the other streetcar involved, also testified for defendant. He stated that no one in his car claimed to have been hurt as a result of the collision; that the glass in the headlight of his car was not broken, nor was the windshield cracked or broken, nor were the four lights on the car ahead nor any windows in the back of the streetcar with which he collided broken; that the car ahead was moved forward very little.

Defendant brought out in the cross-examination of Police Officer Krueger, plaintiff's witness, and in the direct examination of Police Officer Newman, defendant's witness, that the officers did not see any broken glass in the streetcar nor any damage to the streetcar.

It will thus be seen that one of the contested issues of fact in the case was whether or not the impact of the collision was sufficient to cause injury to anyone in the streetcar at the time.

For plaintiff, there was testimony that Miss Elizabeth Downs was also a passenger on the streetcar at the time it was struck and that she also complained of being injured. The admission of certain testimony with respect to her forms the basis of appellant's first assignment of error. The evidence shows that she was taken by police officers from the streetcar to the City Hospital. This testimony was given by Officer Krueger, who testified for plaintiff. The evidence went in without objection by defendant. On cross-examination of this witness, the following testimony was brought out:

"Q. This lady, when you took her to the City Hospital, did she remain there? A. She refused medical attention. Then she sat in the waiting room and waited for somebody to come and get her.

"Q. After you took her there she refused medical attention and waited in the waiting room for someone to come for her? A. That's right. I called up her home for her; helped her out to go home."

Thereafter plaintiff placed on the stand Herman Barken, who testified that he was attorney for Miss Downs, who at the time of trial was in Topeka, Kansas. Barken was asked the following question, to which counsel for defendant objected on the ground that it called for hearsay testimony, was irrelevant, and was immaterial to the issues being tried: "Q. Do you know, of your own knowledge, whether she was ever confined to the hospital following this accident?" The objection was overruled and exceptions were saved. Barken answered: "Yes; I know she was confined at the Missouri Baptist Hospital on the 22nd day of September. She stayed there for a week."

In its brief, appellant contends that the foregoing evidence, admitted over his objection, was prejudicially erroneous because it injected immaterial, irrelevant, and collateral issues into the case, which could only tend to confuse and mislead the jury.

To ascertain whether the evidence was immaterial and irrelevant, it is necessary that we consider whether or not it may be said to logically tend to establish any fact in issue between the parties.

In Jones Commentaries on Evidence, Sec. 587, it is said:

"Applied to testimony, the meaning of the word `relevant' is that the particular testimony directly touches upon the issue which the parties have made by their pleadings, so as to assist in getting at the truth of it. Thus it is said: `Whatever testimony was offered, which would assist in knowing which party spoke the truth of the issue, was relevant; and when to admit it did not override other formal rules of evidence, it ought to have been taken.' It is not necessary, however, that the particular evidence should, in itself, bear directly upon the point in issue, for, though it is but a link in the chain of evidence tending to prove the issue by reasonable inference, it may nevertheless be relevant.

"In the courts there have been several attempts to get closer to a pregnant definition. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent. No precise and universal test of relevancy is furnished by the law. The question must be determined in each case according to the teachings of reason and judicial experience. `If the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury. The question as to its admission or rejection addresses itself to the court as one to be answered with a view to practical, rather than theoretical considerations. One fact is relevant to another fact whenever, according to the common course of events, the existence of one, taken alone or in connection with other facts, renders the existence of the other certain or more probable. According to Stephen, `the word "relevant" means that any two facts to which it is applied are so related to each other that according to the common course of events, one either taken by itself or in connection with other facts proves or renders probable the past, present or future existence, or nonexistence of the other.'"

See also our opinion in Ismert-Hincke Milling Co. v. Mercurio Bros. Spaghetti Mfg. Co., Mo.App., 243 S.W. 408, 410, where we say: "Nothing that is necessary for the court to know in order to reach a just conclusion in a given case can be said to be irrelevant and immaterial."

In the case at bar, the extent of plaintiff's injuries was the sole issue being tried. As bearing on that issue, the defendant's counsel sought to establish by evidence and by cross-examination of plaintiff's witnesses that the force of the collision was so slight that it was unreasonable to suppose that plaintiff could have suffered the serious injury he claimed as a result of it. Plaintiff, on the other hand, by his evidence, tried to establish the fact that there was a violent impact, and he contends here that the evidence complained of tended to corroborate that theory. We believe the evidence did bear directly upon the issues and that it was logically relevant. We believe that the inference from this evidence, that the collision was of such severity as to likely cause injury, was so plausible and direct that it became...