Crenshaw v. St. Louis Public Service Co.

• Decision Date: 04 October 1932
• Docket Number: No. 21981.,21981.
• Parties: CRENSHAW v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

52 S.W.2d 1035

CRENSHAW v. ST. LOUIS PUBLIC SERVICE CO.

No. 21981.

St. Louis Court of Appeals. Missouri.

October 4, 1932.

Rehearing Denied October 18, 1932.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Rosa May Crenshaw against the St. Louis Public Service Company. From a judgment for plaintiff, defendant appeals. Affirmed.

T. E. Francis, B. G. Carpenter, and Allen, Moser & Marsalek, all of St. Louis, for appellant.

Mason, Goodman & Flynn, of St. Louis, for respondent.

HAID, P. J.

This is an appeal from a judgment for plaintiff for $1,600 for injuries received by her while a passenger upon one of the defendant's street cars.

The petition alleged, in substance, that on June 14, 1929, plaintiff was a passenger on one of defendant's east-bound street cars, on the Wellston line; that, for the purpose of alighting from the car at Broadway and Franklin avenue, the plaintiff arose from her seat as the same reached Sixth street, and, while she was walking along the aisle, said car was brought to a stop with a sudden and unusually violent jerk and jar, and instantly thereafter was started forward with an unusually violent jerk, and as a result thereof plaintiff was violently thrown forward, striking the lower part of her abdomen against a seat in front of her, and was then thrown backward at full length upon the floor of the car, whereby she was injured. It alleged that said unusually violent jerk and jar of said street car and plaintiff's fall resulting therefrom were directly due to the negligence of said defendant, and that, as a result of said negligence, plaintiff suffered the injuries alleged in the petition to have been sustained by her. The answer was a general denial.

At the close of the plaintiff's case and again at the close of the entire case, the defendant requested an instruction in the nature of a demurrer to the evidence, and the action of the court in this respect is alleged to have been erroneous.

In view of the fact that the defendant did not stand upon its demurrer at the close of the plaintiff's case but introduced its evidence, we need not consider these errors separately. The objections to the rulings on these demurrers make it necessary to consider the evidence to determine whether a submissible case was made for the consideration of the jury.

In her own behalf plaintiff testified that on June 14, 1929, she was a passenger on an eastbound Wellston car, having boarded the car at Sixteenth and Franklin avenue; that she rang the bell to get off the car at Broadway, and that as she got up to go out the front door the motorman gave an unusual jerk, a double jerk, throwing her forward over a seat, hitting her stomach, and then by another and unusual jerk, backward on her back, and her head hit either the seat or the floor; that she was sitting on the left side towards the rear of the car; that she rang the bell about the middle of the block between Sixth and Broadway, to signal the motorman she desired to get off at Broadway, and was walking towards the front of the car when the jerk occurred; that the first motion of the car threw her forward, and her stomach came in contact with a seat, and then she was thrown backwards on her back and was rendered unconscious; that she had been doing cleaning and laundry work, was paid by the day, and averaged eight, nine, and ten dollars a week, but at the present time is only able to do a little work, for which she is paid five dollars and sometimes six dollars a week; that Dr. Lerner treated her sometimes daily and sometimes every other day for three weeks, and then she continued to see the doctor twice a week for three months, and that his bill for services was $124. On cross-examination she stated that she rang the bell when the car was about the middle of the block between Sixth and Broadway on Franklin avenue, and it was running pretty fast; that after she pushed the button and gave the signal she got up, and that the car was not very far from Broadway when she left her seat; that when she was about in the middle of the car it gave an unusual sudden jerk, double jerk; it just pitched her forward and then backward on her back, and then she was unconscious for several minutes; that when she was assisted from the car she started to go north on Sixth street and called a taxicab to be taken home; that two white women got on the car after the accident, but that she did not remember any white women on the car at the time she fell.

Mrs. Idella Boyd, a witness for plaintiff, testified, in substance, as follows: That she was on the car with plaintiff on June 14, 1929, and that just when the car got near the middle of the block, between Sixth and Broadway, plaintiff rang the bell; that witness was sitting in front of plaintiff; that plaintiff had gotten up and passed witness, who was seated, when the car gave a sudden jerk, a double jerk, and threw plaintiff on her stomach, and another jerk was given, and plaintiff was thrown on her back; that witness screamed, and she and the conductor picked the plaintiff up; that, as plaintiff passed the witness, witness went to get up, the car gave a jerk and threw plaintiff down so witness kept her seat; that plaintiff's head struck on the corner of a seat; that she and the conductor helped plaintiff off the car when it returned around the loop to Sixth street, and witness took plaintiff into a grocery store, called a taxicab, and took plaintiff to her home; she and the chauffeur took her out of the taxicab and upstairs to bed. On cross-examination, this witness testified that when plaintiff got a couple of seats in front of witness the car gave a hard jerk, just about like it was going to tear down something; that at any time you get on a car it will give a jerk, but it did not give that kind of a jerk; it was an unusual jerk, a double jerk; that the car had not reached Broadway, but was not far from it; that there was no one on the car but plaintiff and the witness.

On behalf of the defendant, Lura Belle Deffenbach testified that she boarded the car with a girl friend at Sixth street to go around the loop, and she and her friend sat in the same seat about the fourth seat from the front on the left-hand side; that the car made the regular stop at Broadway, and started up like it usually does, and witness felt no jar; that witness heard a noise like some one had stumbled, looked back, and saw a colored lady sitting on the floor in the aisle; that the conductor went to her and picked her up; that at the time she heard this noise the car was moving along slowly, and the car did not give any jerk. On cross-examination, she testified that the first her attention was called to anything unusual going on was when she heard a thump or noise, as though some one was falling on the floor, and that was as the car was crossing Broadway; that the car made its usual stop and started up in the usual way, in a slow manner, and she did not notice anything about the movement of the car at that time that attracted her attention to the fact; that it went across in the usual customary manner; she did not notice anything unusual about it; that she did not feel any jerk or jar of the car; that she did not remember whether any passengers were taken on at Broadway, but the car stopped there; it just came to a stop and then started up when it was right at Broadway; that the start was just the usual start; she thought it was the conductor that went to the assistance of the colored woman.

R. L. Wallace testified that he was the conductor of the car; that he had been employed as a conductor by the defendant for about twelve years; that the street car stopped at Sixth street and two white women boarded it there; that there were two colored women on the car at the time seated about five seats from the rear of the car on the right-hand side; that the car made a stop at Broadway, and, having ascertained that there was no one to get off, he gave the motorman the bell to go ahead, and witness started taking the statements on the tickets, that is, taking the transfer numbers; that, at the time the car got almost to Broadway, witness happened to glance up towards the front and saw one of the colored ladies had fallen down in the aisle and the other standing right back of her, and witness started up there right away; that just about the time he got there the woman had been raised up and placed on a seat; he asked plaintiff if she was hurt, and she said, "Yes"; he asked her if she wanted a doctor, and she replied that she would go to her own doctor; that at no time after the street car stopped at Broadway and after it started across did it give an unusual jerk of any kind; it ran across there just as usual, traveling about three miles an hour. On cross-examination, he stated that the rules of the company require a stop where one line intersects another; that the first thing that attracted his attention of something unusual going on in the car was when he looked forward and saw this lady had fallen down; that he did not hear her fall and did not hear the other woman cry out or call to him; that the accident happened just as the car was crossing Broadway. On redirect examination, he testified that it is a custom for passengers to take the car and make the loop and go west; that it is an everyday practice; it assures the passenger of a seat.

C. H. Brown testified that he had been employed as motorman for more than eleven years and was in charge of the car in question; that he ascertained an accident was supposed to have occurred on the car just about at Broadway coming west after they had made the loop. On cross-examination, he testified that he knew nothing about the accident until it was over.

Medical evidence was also offered regarding the injuries suffered by the plaintiff.

The contention of the defendant in support of its assertion that the demurrer to the evidence ought to have been...