Chlanda v. St. Louis Transit Co.

CourtMissouri Supreme Court
Writing for the CourtLamm
Citation112 S.W. 249,213 Mo. 244
PartiesCHLANDA v. ST. LOUIS TRANSIT CO. et al.
Decision Date03 July 1908
112 S.W. 249
213 Mo. 244
CHLANDA
v.
ST. LOUIS TRANSIT CO. et al.
Supreme Court of Missouri, Division No. 1.
July 3, 1908.

1. CARRIERS — INJURIES TO PASSENGERS — STREET RAILROAD — BURDEN OF PROOF.

Where plaintiff who was injured in a collision between street cars sued two street railroad companies, and charged that she suffered damages through the negligence of the servants of both, the burden was on her to prove such charge.

2. STREET RAILROADS — CONTRACTS — CONSTRUCTION — LEASE — AFFECT.

A street railway company contracted with another to lease its railway to the latter for 40 years in consideration of a specified rent to be paid and the performance of certain duties in the nature of the restoration of the property at the end of the term and for re-entry in case of default. The contract did not provide that the lessee company should transact business in the name or for the benefit of the lessor, except in so far as the former was benefited by the consideration to be paid by the latter. Held, that the contract was a lease and relieved the lessor company from liability for torts committed in the operation of the road by the lessees' servants.

3. EVIDENCE — WRITTEN INSTRUMENTS — SUFFICIENCY.

Where plaintiff introduced in evidence a lease from one of the defendant street railway companies to the other, plaintiff could not thereafter object that the lease was void because of defendant's failure to show municipal assent thereto required by Const. art. 12, § 20 (Ann. St. 1906, p. 309).

4. STREET RAILROADS — LEASE — PRESUMPTIONS.

Where a street railway company leased its line and property to another company, it must be presumed in the absence of evidence to the contrary that municipal assent to such lease required by Const. art. 12, § 20 (Ann. St. 1906, p. 309), was obtained.

5. APPEAL AND ERROR — REVIEW — REASONS FOR DECISION BELOW.

Where motion for new trial was sustainable on any of the grounds alleged, it was immaterial on appeal that it was not sustainable on the ground on which it was based by the trial judge.

6. DAMAGES — PERSONAL INJURY — EXCESSIVE DAMAGES.

Plaintiff was injured in a street car collision. None of her bones were broken, and there was only a slight temporary discoloration outwardly visible. There were no discoverable lesions or known existing abnormal organs traced to the injury, but she lost considerable weight, and claimed to be suffering from locomotor ataxia or paralysis, affecting her ability to walk. A commission of doctors appointed by the court, however, testified that her trouble was traumatic neurasthenia and traumatic hysteria, and that she would probably recover. There was also evidence that she had incurred indebtedness in the sum of $1,000 for medical treatment and $500 for drugs and medicines. Held, that a verdict awarding her $18,000 was excessive.

7. NEW TRIAL — GROUNDS — EXCESSIVE DAMAGES.

Damages so great as to indicate passion or prejudice on the part of the jury are ground for new trial.

8. CARRIERS — INJURIES TO PASSENGERS — RES IPSA LOQUITUR.

Where, in an action for injuries to plaintiff, a street car passenger, in a collision between the car on which she was riding and a following car, the petition counted on general negligence, plaintiff was entitled to the benefit of the doctrine res ipsa loquitur.

9. WITNESSES — PHYSICIANS — COMPETENCY.

The statute declaring a physician incompetent to testify concerning any information acquired from his patient while attending him in a professional capacity, and which was necessary to enable him to prescribe or do any act as a surgeon, did not disqualify plaintiff's physician from testifying in her action for injuries that on one occasion when he went to her house to collect a bill he saw her walking about and go up a flight of stairs without crutches.

10. APPEAL AND ERROR — REVIEW — PREJUDICIAL ERROR — EVIDENCE.

Where, in an action for injuries, defendant's chief contention was over the extent and permanency thereof and the amount of damages, and the whole trend of plaintiff's case was that she could not walk without artificial aid, the erroneous exclusion of evidence of plaintiff's physician that on one occasion he saw her walk about the house and go upstairs without crutches was prejudicial.

11. SAME — INVITED ERROR.

In an action for injuries defendant offered to prove by plaintiff's physician that on one occasion he saw her walking about the house and upstairs without artificial aid, an objection that the witness was incompetent having been overruled defendant's counsel then stated "This doctor has not been discharged as plaintiff's physician, but has continued to treat her and was, at the time of going to see her with reference to his bill." On such statement the objection was erroneously sustained. Held, that the statement made by defendant was not an invitation to the court to change its ruling on the objection so as to render the changed ruling invited error.

[112 S.W. 250]

Appeal from Circuit Court, Boone County; Alex. H. Waller, Judge.

Action by Rose Chlanda against the St. Louis Transit Company and another. Judgment for plaintiff, and from an order granting defendants' motion for a new trial, plaintiff appeals. Affirmed.

C. B. Sebastian, Thomas T. Fauntleroy, and Shepard Barclay, for appellant. Boyle & Priest and T. E. Francis, for respondents.

LAMM, J.


This is a suit for $35,000 damages for personal injuries alleged to have been received by plaintiff through the negligence of two domestic street railway corporations, viz., the St. Louis Transit Company and the United Railways Company of St. Louis. Begun in the circuit court of the city of St. Louis, such changes of venue were had that the cause went to the Boone circuit court, and was tried at Columbia before Judge Waller and a jury, resulting in a verdict against both defendants for $18,000. Defendants, not content, filed their separate motions for a new trial. The court sustained both, after taking time to consider. There was an array of grounds in each motion but, singling out one, the court made it the basis of its order, viz., error in excluding legal and competent evidence offered by defendants. From the order granting a new trial, plaintiff appeals after an unsuccessful motion to vacate it.

The cause was tried on a second amended petition setting forth that defendants were doing business in the city of St. Louis as common carriers of passengers for hire, owning and operating a line of street railway and cars run by electricity upon Washington avenue, a public street in said city, and connecting with a system of street railways similarly owned and operated; that on the 6th day of December, 1901, she was a passenger for pay on one of defendant's cars; that while seated therein, and when between Thirteenth and Fifteenth streets, another of defendants' cars ran into hers, "because of the negligence and careless operation of said cars of defendants, whereby they were so permitted to collide as aforesaid, when by the exercise of due and reasonable care, such as it was the duty of defendants to observe towards plaintiff as a passenger as aforesaid, in the said circumstances, said collision would have been avoided by defendants and their agents in charge of said cars and each of them." By the collision, plaintiff alleges she was violently thrown out of her seat with much force, "so that she fell backward upon the same seat"; that she received severe injuries to her back and spinal column; was severely jolted and shocked and bruised, and received hurts to her spine and inwardly which crippled her for life, destroyed her health and happiness, subjected her to heavy expenses for medical care, attention, and nursing, and will continue in the future to cause such expenses, that she has endured and will endure great physical and mental pain and suffering, has lost her ability to earn a livelihood, has lost time and earnings to a large amount, and will continue to lose them in the future — all as the direct result of said collision and injuries. The defendants filed general denials as separate answers. It stands conceded plaintiff was a passenger for pay, that defendant transit company was operating the car on which she was riding and the one ramming it as a common carrier of passengers for hire, and that a rear end collision occurred. So much is without conflict.

Plaintiff introduced testimony tending to show that the force of the collision was severe; that her car had stopped to let passengers off and on; and that a following car struck hers with great force, throwing her out of her seat and then backward, injuring her in the small of the back; that therefrom she had lost weight (20 to 30 pounds) and power of locomotion, had become nervous, anemic, and pale, suffering constant pain by day and by night, which pain was increasing instead of diminishing; and that she was generally obliged to use crutches in walking but sometimes could walk at home without, aided by a chair or cane. Her medical experts gave it as their opinion that she suffered a concussion of the spine; that locomotor ataxia or paralysis resulted; that she would never completely recover the use of her limbs and that her helplessness is permanent. These experts had not examined her later than March, 1902 (the trial was in June, 1904). A few days before her injury she had been examined by a physician for insurance, and was found in perfect nervous condition — "a picture of health" and "sound in all particulars." The same physician had seen plaintiff at intervals since that examination, the last time about July 26, 1903. At that time (from observation) he characterized her condition as that of a "physical wreck," and as showing a lack of locomotion.

Plaintiff is a widow, and was engaged in the occupation of a seamstress in all its various branches — custom shirtmaking, dressmaking, embroidery — all kinds of fancy work, to make a living for her family. She was earning...

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49 practice notes
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...169 S.W. 118; Rositzky v. Rositzky, 329 Mo. 662, 46 S.W. (2d) 591; Ruggles v. Washington County, 3 Mo. 496; Chalnda v. St. L. Transit Co., 213 Mo. 244, 112 S.W. 249; State ex rel. v. Burney, 269 Mo. 602, 191 S.W. 981; Seegers v. Marx-Haas Co., 334 Mo. 632, 66 S.W. (2d) 526; Dano v. Sharpe, ......
  • Burch v. Railway Co., No. 28820.
    • United States
    • United States State Supreme Court of Missouri
    • June 24, 1931
    ...for imparting such notice to defendant, and that was effective for that purpose. McCallister v. Ross, 155 Mo. 87; Chlanda v. Transit Co., 213 Mo. 244; Hartwell v. Parks, 240 Mo. 537; Brigham City Fruit Growers Assn. v. Produce Co., 220 S.W. 916; 22 C.J. 103-107, sec. 46. (d) The court will ......
  • State ex rel. Donelon v. Deuser, No. 36070.
    • United States
    • United States State Supreme Court of Missouri
    • December 14, 1939
    ...it was the result of passion and prejudice on the part of the jury. Partello v. Mo. Pac. Ry. Co., 217 Mo. 645; Chlanda v. Railroad Co., 213 Mo. 244. (6) Where the trial court sustains a motion for a new trial, on an appeal therefrom all the assignments of error in the motion for a new trial......
  • Jones v. Pennsylvania Railroad Co., No. 38998.
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 1944
    ...by the jury is vital to a verdict's incipient validity. King v. Mann, 315 Mo. 318, 286 S.W. 100; Chlanda v. St. Louis Transit Co., 213 Mo. 244, 112 S.W. 249; Bente v. Finley (Mo. App.), 83 S.W. 2d 155; Rigby v. St. Louis Transit Co., 153 Mo. App. 330, 133 S.W. 110; Minneapolis, St. Paul &am......
  • Request a trial to view additional results
49 cases
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...169 S.W. 118; Rositzky v. Rositzky, 329 Mo. 662, 46 S.W. (2d) 591; Ruggles v. Washington County, 3 Mo. 496; Chalnda v. St. L. Transit Co., 213 Mo. 244, 112 S.W. 249; State ex rel. v. Burney, 269 Mo. 602, 191 S.W. 981; Seegers v. Marx-Haas Co., 334 Mo. 632, 66 S.W. (2d) 526; Dano v. Sharpe, ......
  • Burch v. Railway Co., No. 28820.
    • United States
    • United States State Supreme Court of Missouri
    • June 24, 1931
    ...for imparting such notice to defendant, and that was effective for that purpose. McCallister v. Ross, 155 Mo. 87; Chlanda v. Transit Co., 213 Mo. 244; Hartwell v. Parks, 240 Mo. 537; Brigham City Fruit Growers Assn. v. Produce Co., 220 S.W. 916; 22 C.J. 103-107, sec. 46. (d) The court will ......
  • State ex rel. Donelon v. Deuser, No. 36070.
    • United States
    • United States State Supreme Court of Missouri
    • December 14, 1939
    ...it was the result of passion and prejudice on the part of the jury. Partello v. Mo. Pac. Ry. Co., 217 Mo. 645; Chlanda v. Railroad Co., 213 Mo. 244. (6) Where the trial court sustains a motion for a new trial, on an appeal therefrom all the assignments of error in the motion for a new trial......
  • Jones v. Pennsylvania Railroad Co., No. 38998.
    • United States
    • United States State Supreme Court of Missouri
    • July 3, 1944
    ...by the jury is vital to a verdict's incipient validity. King v. Mann, 315 Mo. 318, 286 S.W. 100; Chlanda v. St. Louis Transit Co., 213 Mo. 244, 112 S.W. 249; Bente v. Finley (Mo. App.), 83 S.W. 2d 155; Rigby v. St. Louis Transit Co., 153 Mo. App. 330, 133 S.W. 110; Minneapolis, St. Paul & S......
  • Request a trial to view additional results

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