Carney v. United Rys. Co. of St. Lows

• Decision Date: 07 December 1920
• Docket Number: No. 16097.,16097.
• Parties: CARNEY v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

226 S.W. 308

205 Mo. App. 495

CARNEY v. UNITED RYS. CO. OF ST. LOUIS.

No. 16097.

St. Louis Court of Appeals. Missouri.

December 7, 1920.

Appeal from St. Louis Circuit Court; Chas. B. Davis, Judge.

Action by Mary Carney against the United Railways Company of St. Louis. From judgment for plaintiff, defendant appeals. Reversed, and cause remanded, with directions.

Chas. W. Bates, T. E. Francis, Chauncey Clarke, and Albert D. Norton', all of St. Louis, for appellant.

E. M. Grossman and J. L. Hornsby, both of St. Louis, for respondent.

ALLEN, J.

This is an action for damages on account of personal injuries alleged to have been sustained by plaintiff by reason of the negligence of the defendant, a street railway company. The petition is in two counts. In the first count it is alleged, in substance, that on August 8, 1916, plaintiff was a passenger upon one of defendant's east-bound street cars on its "Maryland Avenue" line, in the city of St. Louis; that the street car proceeded eastwardly to Fourth street, where it turned north into the latter street, and proceeded northwardly on that street to a point near the intersection of Fourth street and Locust street, where it stopped for the purpose of discharging passengers, this being the usual and customary stopping place for such purpose. And it is averred that while plaintiff was in the act of alighting from the front platform of said car, and before she had completed the act of alighting therefrom, or had had a reasonable opportunity so to do, and while she was grasping with her left hand a perpendicular rod located on the inside of the front platform vestibule, and while in the exercise of ordinary care for her own safety, the defendant's agents and servants in charge of the car negligently closed the front door of the front platform vestibule of the car and negligently permitted said door to "slide shut" on plaintiff's left wrist' with such force and violence as to break and fracture the bones thereof. Alleging that by reason of the injuries so received plaintiff suffered great pain and was confined to her home and to her bed for nine weeks, that her wrist and hand are permanently disabled, and that she lost her earnings as a schoolteacher for a period of five weeks and was compelled to make expenditures for medical services and treatment in the sum of about $100, judgment is prayed on this count in the sum of $3,500.

In the second count it is again alleged that plaintiff was a passenger on said car on defendant's Maryland Avenue line, and that the same stopped on Fourth street near Locust street for the purpose of discharging passengers. It is then alleged:

That at the said point the car "makes a turn to the left and in a northwestwardly direction to the northernmost tracks on Locust street in order to proceed westwardly on said Locust street; that in making the turn the body of the car necessarily swings eastwardly and northeastwardly from the easternmost tracks on Fourth street; that as the plaintiff alighted said car was started by defendant's agents and servants in charge thereof with such negligent and careless suddenness and speed as to cause the body of said car to swing outwardly from said tracks toward plaintiff so rapidly and so speedily as to give plaintiff, who was in the exercise of ordinary care, no opportunity to withdraw from a position of danger, with the result that the body of said car knocked and threw plaintiff to the ground, causing bruises and contusions on the whole of the left side of plaintiff's body, and said car struck plaintiff's left foot and ankle, turning and spraining said ankle."

An ordinance of the city of St. Louis is pleaded providing, in substance, that in stopping to discharge or take on passengers a street car shall be kept stationary for a sufficient length of time to enable passengers to safely board or leave the car; and it is alleged that the defendant's agents and servants violated this ordinance in negligently failing to permit the car to remain stationary for a sufficient length of time to enable plaintiff to safely leave the same. Alleging that plaintiff suffered great pain as a result of the injuries alleged in this count to have been received by her, that she was confined to her bed and home for a period of nine weeks, and lost her earnings as a teacher for a period of five weeks, that her earning capacity has been permanently impaired, that "she has suffered expense to the extent of $500," and was compelled to expend about $100 for medical services and treatment, judgment is prayed on this count in the sum of $3,500.

The answer to the first count is a general denial.

The answer to the second count is a general denial coupled with a plea that whatever injuries, if any, plaintiff sustained were caused by her own negligence "in assuming and retaining a position in close proximity to a street car while said street car was rounding a curve."

The trial below before the court and a jury resulted in a verdict for the defendant on the first count of plaintiff's petition, and in favor of plaintiff on the second count thereof, assessing her damages on this count at $1,250. Judgment followed accordingly, from which the defendant prosecutes this appeal.

The evidence shows that on the morning of August 8, 1916, plaintiff, who is a teacher in the public schools of the city of St. Louis, took passage upon one of defendant's eastbound cars on its Maryland Avenue line, in company with her sister, at a point near plaintiff's home on Maryland avenue in said city, and that plaintiff and her sister remained on the car until it turned north into Fourth street, the eastern end of the Maryland Avenue line, and had proceeded nearly a block north on Fourth street to a point immediately south of Locust street. At Fourth and Locust streets the Maryland Avenue cars turn west into Locust street. The evidence is that this car was delayed en route for some reason, at a point on Olive street near Thirteenth street, for a period of 10 or 12 minutes, and was consequently behind its scheduled time when it reached Fourth street.

Plaintiff testified that, when the car stopped at the aforesaid point on Fourth street near Locust street, she and her sister proceeded to leave the car by way of the door at the right of the front platform vestibule, they being the last passengers. to leave the car, that plaintiff's sister alighted first, and that while plaintiff was in the act of alighting, having her feet on the car step and grasping with her left hand a rod inside of the door, the motorman, by means of a lever, hurriedly closed the door, whereby her wrist was struck by the door and the bones thereof were broken. She testified that because of this blow to her wrist she was very much dazed, and that when she stepped to the ground she stood for a moment holding her wrist, being unable to move, that the motorman started the car forward with great rapidity, that plaintiff's left hand was thereupon struck by some part of the front portion of the car, breaking a bone in that hand, and that the rear part of the car swung out and hit her, throwing her to the ground, and that the "trailer bar" at the rear of the car swung out and caught her foot, injuring it.

Plaintiff's sister, Nellie Carney, who, as said, left the car immediately in front of plaintiff, testified that after stepping from the car she turned around and saw plaintiff standing near the car holding her left wrist with her right hand. Referring to plaintiff, the witness said: "She was perfectly dazed." The witness stated that when she thus turned around and saw plaintiff holding her left wrist with her right hand the car was going at full speed. It appears that plaintiff's sister has not the use of her right arm. She testified that she attempted to draw plaintiff out of danger, but was unable to do so. She said:

"She [plaintiff] was still standing with her eyes closed, and I wanted to put my hand to draw her, and at that moment the car struck her. I was unfortunately—she was to my right, and I couldn't do it (indicating) with this hand. So I missed her in reaching over."

Defendant called as witnesses two men who assisted plaintiff after her injury. One of them, Morris Koenisburg, testified that he was standing on the southeast corner of Fourth and Locust streets at the time; that he observed the car turning and plaintiff being pushed forward by the rear part thereof ; that he saw plaintiff fall to the street. He had not observed plaintiff prior to the time when she was struck by the rear end of the car in turning. The other witness, Waltter Richter, testified that he was standing at the southeast corner of Fourth and Locust streets and saw plaintiff and her sister leave the car; that plaintiff's sister at once started to cross Fourth street in a northeasterly direction; that plaintiff "got off the car and stood still and appeared to be looking into space"; that the car "started forward and the rear end of the car pushed her over."

The defendant called two witnesses who, it is said were defendant's servants in charge of the car, as motorman and conductor respectively, on the occasion in question. Neither knew anything of the casualty. A physician who had been appointed by the court to make a physical examination of plaintiff testified in behalf of defendant. Two witnesses, attorneys at law, were called by defendant, but were not permitted to testify as to statements made to them by plaintiff. The exclusion of this proffered testimony will be considered in the course of the opinion.

The cause was first submitted to this court at our last term, and in an opinion by Nipper, C., we affirmed the judgment. Thereafter a motion for rehearing filed by defendant was sustained, and the cause has since been reargued and resubmitted.

I. The first point made by appellant's learned counsel involves the question as to the effect to be given to the finding of the jury against the plaintiff on...