Carlson v. Wells.

• Decision Date: 30 July 1925
• Docket Number: No. 249844.,249844.
• Citation: 276 S.W. 26
• Parties: CARLSON v. WELLS.
• Court: Missouri Supreme Court

276 S.W. 26

CARLSON v. WELLS.

No. 249844.

Supreme Court of Missouri, Division No. 1.

July 30, 1925.

Opinion Modified and Motion for Rehearing Overruled October 9, 1925.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

Action by Andrew Carlson against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for defendant and plaintiff appeals. Reversed and remanded.

Mark D. Eagleton and Harry S. Rooks, both of St. Louis, for appellant.

T. E. Francis and W. H. Woodward, both of St. Louis, for respondent.

SEDDON, C.

Action to recover damages for alleged personal injuries. The substantive part of plaintiff's petition is as follows:

"Plaintiff further states that on or about the 3d day of March, 1922, he was riding as a passenger in one of defendant's aforesaid Wellston line street cars, which defendant was then and there, by and through his agents and servants, operating as aforesaid, westwardly along said Franklin avenue; that the rear entrance of said car was equipped with a door that opened and closed; that defendant, his agents and servants, habitually and customarily kept such doors closed when the car was in motion and not stopped, and had done so for a long period of time theretofore; that said car was very crowded; and that passengers were standing and riding in the aisles and on the platforms thereof as well as in the seats thereof; that the rear platform of said car was crowded and filled with passengers standing and sitting thereon; that plaintiff was standing upon said rear platform of said car, and was a passenger riding there as aforesaid; that, when said car was at or near said Leffingwell avenue, and while said car was moving and in motion, the aforesaid rear door thereof was opened and not closed, and the said car did then and there suddenly and violently jerk, jar, and jolt in a very extraordinary, unusual, and unexpected manner, directly and proximately causing passengers riding upon said rear platform to be jerked, jolted, swayed, shaken, directly and proximately causing plaintiff to fall and be thrown from said car through the said rear door thereof (which was open as aforesaid) to the street, while said car was moving and in motion, directly and proximately causing"

—plaintiff to suffer certain specified injuries. The petition then concludes:

"Plaintiff further states that his injuries sustained as aforesaid directly and proximately resulted from negligence and carelessness of defendant, his agents and servants,"

—wherefore plaintiff prays damages in the sum of $25,000. The answer of defendant is a general denial.

Plaintiff, an elderly man, 73 years of age, weighing 190 pounds, was injured a few minutes after 5 o'clock on the afternoon of March 3, 1922, while riding as a passenger on one of defendant's street cars on the Wellston line at or near the intersection of Leffingwell and Franklin avenues in the city of St. Louis. The plaintiff's evidence tended to show that he, with a number of other passengers, had boarded the car at Jefferson and Franklin avenues, two blocks east of the intersection where he received his injuries. The car was traveling westwardly on Franklin avenue. When plaintiff boarded "We had a standing load on the car approximately before we reached Jefferson avenue. By standing load, I mean that the seats were all taken and people were standing in the aisle and the back platform. * * * I should judge there were about 50 people waiting to board my car when I stopped at Jefferson avenue."

Plaintiff testified that, upon boarding the car—

"The rear platform of the car was crowded with passengers. I stood right even with the platform; my heels were even with the outside edge of the platform. My back was north as we were going west. As the car moved westwardly I was standing on the platform, and the conductor was to the right of me, right in the corner. The conductor was on the north side of the car right next to the door. He was on the same side of the car that I was on. They (the car, or platform, doors) were open when they came to Jefferson avenue, and they didn't shut them. The car doors, which ordinarily close up when the car is in motion, were open as the car came to Jefferson avenue, and thereafter they remained open as the car proceeded westwardly. When I first went up, I pulled myself up on a railing, but I had to leave go; it was too crowded; so that while the car was in motion there I didn't have hold of anything. As the car approached Leffingwell avenue on this occasion it went along smooth until we got there, and just about before they were going to stop the car made a jolt, a very unusual jolt, and I fell backwards like a log; I fell right at the time the jolt occurred. The jolt was unusual, and the back end kind of swung a little bit. There are always jolts on a street car, more or less. This jolt differed from the ordinary jolt—it was more severe. I fell and was dazed, and I don't know what happened."

The doors of the rear platform were controlled, by a lever operated by the conductor. Ordinarily, when the car is in motion, the conductor pulls the lever, whereupon the step folds up and the doors come together. Plaintiff had for many years ridden on this car line, twice daily. Plaintiff was corroborated in his testimony by another passenger, Joe Laroge, who had also boarded the rear platform of the car at Jefferson avenue, and stood on the platform with a hold upon the hand railing around the fare box. He testified:

"As the car reached or neared Leffingwell avenue, just when it was going to stop, Mr. Carlson (plaintiff) fell off. I observed that the car gave a jerk just before he fell off. It gave a jerk, and then kind of a rebound. I grabbed a tighter hold on the railing. After he fell off, the car moved about four or five feet further. * * * Our car came up to Leffingwell avenue, but it did not stop there before Mr. Carlson fell off. He fell off before it stopped. The car traveled about four or five feet after he fell—I couldn't say exactly. * * * With reference to the character of this jolt whether it was one of those usual and ordinary jerks or not, would say it was a little more severe than the ordinary jolt."

The testimony shows that plaintiff suffered very serious and painful injuries, including a compacted fracture of the cervicle neck of the left femur bone at the hip joint, and consequent atrophy of the muscles and tendons, causing' a shortening of his left leg about one and a half inches, together with a general nervous shock. His injuries were described by medical experts as permanent, and the defendant offered no testimony disputing the severity or permanency of his injuries.

Defendant receiver offered, as witnesses in his behalf, the motorman and conductor of .the car and several passengers thereon at the time. These witnesses, for the most part, denied that there was any unusual jerk or jolt of the car at the time in question, and testified that the car had stopped still when the plaintiff fell from the car. The motorman said:

"At Leffingwell I made a nice, smooth stop, which I practice all the time."

The evidence of defendant tended to show that plaintiff was pushed or knocked from the car while it was standing still by a negro passenger who was pushing his way through the crowd on the rear platform in an attempt to alight from the car. Some of the defendant's witnesses thought that plaintiff was standing on the step of the car at the time, while others believed he was standing upon the platform. The conductor himself did not know whether plaintiff "was on the edge of the platform or the step." Defendant also introduced as witnesses his claim adjuster and two police officers, who gave testimony by way of impeachment on defendant's behalf. Two instructions were given on behalf of plaintiff, one of which followed generally the allegations of his petition, and ended as follows:

"And if you further find from the evidence that the said jerk, jar, and jolt of said car, if any, and plaintiff's said fall, if any, and his said injuries, if any, directly and proximately resulted from failure of defendant, his agents and servants, to exercise the highest practicable degree of care (if you so find), then your verdict must be in favor of the plaintiff and against defendant."

Plaintiff's other instruction was on the measure of damages. The court gave three instructions upon behalf and at the request of defendant, reference to which follows in the opinion. The jury returned a verdict for defendant, judgment was entered thereon, and, after duly seeking and being denied a new trial, plaintiff appeals to this court. Plaintiff assigns as error here the giving by the court nisi of the three instructions, and each of them, on behalf of defendant.

I. Appellant assigns error in the giving of defendant's instruction numbered 2 as follows:

"You are instructed that the basis of plaintiff's action is the alleged negligence of the defendant. That negligence cannot and must not be assumed or presumed, and the burden is upon the plaintiff to prove it by the greater weight or preponderance of the evidence. The particular negligence of which plaintiff says the defendant was guilty is that the defendant caused its street car to jerk and jolt in a sudden, violent, unusual, and unexpected manner, thereby causing plaintiff to be thrown from the car. The mere fact that plaintiff received some injuries is not of itself sufficient to entitle him to `recover, and before he can do so he must prove that his injuries were directly caused by the alleged negligent acts of defendant. If he has failed to do that, your verdict must be for the defendant."

Appellant insists that his petition is bottomed on the res ipsa loquitur doctrine; contains no allegations or charges of specific negligence; but merely states the facts and circumstances leading up to his injuries, followed with the usual allegation of general negligence. Hence...