Brady v. Springfield Traction Co.

• Decision Date: 03 January 1910
• Parties: BRADY v. SPRINGFIELD TRACTION CO.
• Court: Missouri Court of Appeals

124 S.W. 1070

140 Mo. App. 421

BRADY v. SPRINGFIELD TRACTION CO.

Springfield Court of Appeals. Missouri.

January 3, 1910.

Rehearing Denied February 7, 1910.

1. CARRIERS (§ 280) — CARRIAGE OF PASSENGERS — CARE REQUIRED.

A carrier must exercise the utmost care for the safety of its passengers that would be used by very cautious persons under the same circumstances.

2. CARRIERS (§ 287) — INJURY TO PASSENGERS — TAKING UP PASSENGERS.

A street car must stop a sufficient length of time to give passengers an opportunity to board it and reach a place of safety, and, where under the circumstances it is necessary for a passenger to reach a seat and be seated in order to be safe from danger when the car is to start, the car must stop until the passenger has been seated.

3. CARRIERS (§ 314) — INJURIES TO PASSENGERS — ACTION — PETITION.

A general allegation in a petition in an action for injuries to a passenger on a street car that the car was started before the passenger

had time to be seated, and that injury resulted therefrom, states a cause of action.

4. CARRIERS (§ 314) — INJURIES TO PASSENGERS — ACTION — PETITION.

A petition in an action for injuries to a street car passenger that the carmen negligently started the car with a sudden jerk and in such manner as to violently throw the passenger, who had not taken a seat, against the side of a seat, sufficiently charges negligence in the operation of the car without charging that the jerk was an extraordinary or unusual one.

5. CARRIERS (§ 280) — CARRIAGE OF PASSENGERS — CARE REQUIRED.

What is required of a carrier in the performance of its duties to use proper care for the safety of its passengers depends in a given case on the facts thereof, and not on the common practice of the carrier.

6. CARRIERS (§ 316) — CARRIAGE OF PASSENGERS — NEGLIGENCE — RES IPSA LOQUITUR.

Proof that a street car was negligently started with a sudden jerk before a passenger had taken a seat in such a manner as to violently throw the passenger against the side of a seat made a prima facie case of actionable negligence, provided the passenger used due care.

7. APPEAL AND ERROR (§ 1050) — HARMLESS ERROR — ERRONEOUS ADMISSION OF EVIDENCE.

In an action for injuries to a street car passenger, the error in permitting a witness to testify that a physician who had visited the passenger without being sent for by her stated at the time of his visit that he was the physician of the road was harmless.

8. EVIDENCE (§ 128) — DECLARATIONS — PERSONAL INJURIES — ADMISSIBILITY.

A physician in describing the result of an examination of a patient sustaining a personal injury may give statements of the patient made to him in the course of the examination which relate to the condition of the patient at the time and which give the physician information proper for him in determining the condition of the patient, but statements made by the patient relating to his past condition or to the circumstances surrounding the injury or the manner in which he received it are inadmissible.

9. CARRIERS (§ 281) — INJURIES TO PASSENGERS — CARE AS TO ENFEEBLED PERSON.

Where an old lady in an enfeebled condition boarded a street car, the conductor who had watched her was negligent in giving a signal to start the car before she had had a reasonable time in which to take a seat, rendering the railroad liable for injuries sustained to her by being thrown against the side of a seat by the starting of the car.

10. APPEAL AND ERROR (§ 1060) — HARMLESS ERROR — MISCONDUCT OF COUNSEL.

Where, in an action for injuries to a street car passenger, the verdict rendered for her was the only proper verdict, and the damages awarded were not excessive, the misconduct of her counsel in calling the jury's attention in his argument to the fact that the passenger was an old lady and had nothing, and was supported by a son compelled to work in a railroad shop, and that the defendant was a corporation able to employ the best counsel, was not prejudicial.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by Mary Brady against the Springfield Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff sued for damages on account of an injury she claims to have received while a passenger on defendant's street car in the city of Springfield. Recovered damages below for $1,200, and defendant has appealed. The material parts of the petition on which the case was tried are as follows: "That on or about the 18th day of September, in 1907, the said defendant, while operating a street railroad as aforesaid mentioned on said Commercial street, accepted the plaintiff as a passenger on board one of its cars, and that as she was in the act of taking her seat, and while she was standing in said car, the agents, servants, and employés of said defendant negligently and suddenly started said car before the plaintiff had time to be seated therein, and negligently started said car with a sudden jerk and in such a manner as to violently throw plaintiff against the side or end of the seat in said car which injured her as follows, to wit: That two short ribs on the left side of the plaintiff, to wit, the tenth and eleventh, were fractured, and that she was greatly wounded and bruised on and along her spinal column, and was bruised and injured internally, and that her kidneys were affected — that the agents, servants, and employés of the defendant knew plaintiff's position in said car or by the use of reasonable diligence could have known it."

The evidence shows: That plaintiff and two other passengers boarded defendant's car at the corner of Springfield avenue and Commercial street. That at this point the car makes a curve turning from Springfield avenue into Commercial street, and the grade is a little upgrade. The conductor was standing on the rear platform, and watched the plaintiff board the car. The motorman was at the front end of the car, and started the car upon a signal given by the conductor from the rear. When the car started, it started with a "jerk" as the witnesses described it, and as a result of this "jerk" the plaintiff, who was not yet seated, was thrown into a seat, and, as she claims, injured by striking the end or back of the seat. One of the other passengers was seated before the car started. The other one was at the end of the seat ready to sit down, and the starting of the car also threw her into the seat, but did not injure her. The plaintiff was 69 years of age, walked with a cane, and was helped on to the car by one of the fellow passengers. The evidence of the conductor and motorman discloses the fact that at this point, there being a curve in the track and an...