Davis v. Wells
| Decision Date | 06 May 1930 |
| Docket Number | No. 21073.,21073. |
| Citation | 27 S.W.2d 714 |
| Court | Missouri Court of Appeals |
| Parties | DAVIS v. WELLS et al. |
Appeal from St. Louis Circuit Court; William H. Killoren, Judge.
"Not to be officially published."
Action by David Knight against Rolla Wells, as receiver of the United Railways Company of St. Louis, and another, which was revived after the death of plaintiff in the name of Octavia G. Davis, administratrix of the estate of David Knight, deceased. Judgment for plaintiff, and the defendants appeal.
Affirmed.
T. E. Francis and Vance J. Higgs, both of St. Louis, for appellants.
C. R. Cravens and Douglass & Inman, all of St. Louis, for respondent.
This is an action for damages, instituted by David Knight against the defendants. The suit was instituted on the 6th day of December, 1926. On June 26, 1928, the death of plaintiff was suggested, and the cause was revived in the name of Octavia G. Davis, administratrix of the estate of David Knight, deceased.
The petition alleges that on October 24, 1926, David Knight was in the act of boarding a west-bound Bellefontaine street car operated by said receiver at or near the intersection of Linton and West Florissant avenues in the city of St. Louis; that the car had been brought to a stop at the usual and customary stopping place for passengers, and deceased had placed his feet upon the step of said car, and was in the act of boarding it, when it suddenly started forward, causing deceased to be thrown from the car, whereby he sustained serious injuries.
The only evidence offered on the part of the plaintiff as to how the accident occurred and how deceased received his injuries was the testimony of deceased contained in a deposition taken prior to his death. Decedent was seventy-three years old. He stated that the accident occurred at Linton and Florissant avenues, at the regular stopping place for street cars to take on passengers. The car stopped at this corner and three ladies preceded him on the car, which was by front entrance. He started to board the car, and took hold of the handhold and stepped on the lower step. The car started up suddenly, and the door was closed, and caused him to be thrown off the car. He was taken to the hospital in an ambulance, where his injuries were treated. Two doctors testified in behalf of plaintiff as to the nature and character of the injuries received by Knight, but their testimony becomes immaterial in view of the questions presented here on appeal.
The conductor and motorman who were operating the street car at the time, E. W. Collins, an employee of defendants, and his wife, Glenn Clemons, Lollie Blansett, H. L. Lonsdale, and Mrs. Lonsdale, all passengers on the street car at the time, testified in behalf of defendants. Their evidence was all to the effect that the street car had started in motion when plaintiff left the sidewalk. He then ran to the side of the car, and near the rear end, and began to beat on the car with his hand for the purpose of having the conductor open the door, and he was struck by the rear end of the car as it went by, and knocked down.
There was a verdict and judgment for plaintiff in the sum of $2,500. From this judgment defendants have appealed.
During the course of the argument of plaintiff's counsel, he made use of the following language: "Now, gentlemen, if you find a verdict for the defendants in this case, you will mark across the tombstone of this old man, lying in his grave, `Here lies the body of a perjurer.'" Counsel for defendants objected to the argument, on the ground that it was unfair, and was an appeal to the prejudice and passion of the jury. To this statement counsel for plaintiff stated that he did not mean it as such, and added, "This man either told the truth, or he didn't." The court overruled the objection, and plaintiff's counsel proceeded with his argument.
The sole question raised here on appeal, and the only ground upon...
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