Deaver v. St. Louis Public Service Co., 27166.

• Decision Date: 21 January 1947
• Docket Number: No. 27166.,27166.
• Citation: 199 S.W.2d 83
• Parties: DEAVER v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

199 S.W.2d 83

DEAVER v. ST. LOUIS PUBLIC SERVICE CO.

No. 27166.

St. Louis Court of Appeals. Missouri.

January 21, 1947.

Rehearing Denied February 21, 1947.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be reported in State Reports."

Action by James J. Deaver against the St. Louis Public Service Company for personal injuries sustained in a fall to the floor of defendant's street car as the result of a sudden lurch thereof. From an order sustaining defendant's motion for a new trial after a jury's verdict for plaintiff, plaintiff appeals.

Affirmed and remanded.

Russell J. Horsefield, and Chelsea O. Inman, both of St. Louis, for appellant.

O. P. Owen, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action in which plaintiff sought damages of $10,000 for personal injuries sustained on December 21, 1945, while he was a passenger on one of defendant's southbound Jefferson Avenue street cars. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $5,000. The court thereafter sustained defendant's motion for a new trial, whereupon plaintiff gave notice of appeal, and by timely steps has caused the action to be transferred to this court, which has appellate jurisdiction upon the ground that the amount of the verdict is the amount in dispute. State ex rel. v. Ellison, 272 Mo. 571, 199 S.W. 984; Williams v. Atchison, T. & S F. Ry. Co., 233 Mo. 666, 136 S.W. 304; Culbertson v. Young, 156 Mo. 261, 56 S.W. 893.

The charge upon which defendant's liability was predicated was that while plaintiff, after boarding the car, was walking down the aisle preparatory to taking his seat, the car lurched, jerked, and moved in an extraordinary and unusual manner and with great force and violence, causing another passenger to be thrown against plaintiff, and plaintiff to be knocked in and about the car, as the result of which he sustained a fracture in the region of the right ankle.

Defendant admitted its ownership, operation, and control of the street car, but denied the other allegations contained in plaintiff's petition.

The new trial was granted upon the ground that the court, during the argument of defendant's counsel, had erroneously denied counsel's right to comment upon plaintiff's failure to call one Edster as a witness, when Edster had been present in the court room throughout the trial, and (as the court finally concluded) available to plaintiff as a witness, but (for reasons to be stated) not available to defendant.

Plaintiff testified that while awaiting the approach of the car, he had stood in the safety zone in company with a woman and two other men. One of the men was Edster, although plaintiff was not acquainted with any of the persons at the time.

When the car stopped to take on passengers, the woman boarded it first, one of the men followed her, plaintiff stepped up third, and Edster entered last. After paying his fare, plaintiff started towards the rear of the car, and had taken three or four steps when the car, which had meanwhile started up, gave a sudden and violent lurch, causing him to be thrown off balance and to be struck in the back by Edster, and then to fall to the floor of the car.

According to plaintiff's testimony, Edster apologized for having struck against him, and then went forward to speak to the motorman. He had informed plaintiff that he would "go up and tell the motorman about it", but plaintiff could not hear the conversation, nor did he himself report the occurrence to the motorman.

When plaintiff suggested leaving the car in order to get treatment for his injured ankle, Edster inquired if he might assist him, and the two of them left the car at the next stop and called upon a Dr. Seib, who had his office nearby. Edster had learned of Dr. Seib's location when he had gone into a business house to telephone for a taxicab to take plaintiff to the hospital. The men were total strangers to Dr. Seib, who made out a report of the case from information supplied him by Edster; and upon diagnosing the injury as a fracture at the lower end of the fibula, the doctor advised that plaintiff be taken to the City Hospital, where a cast might be applied.

Edster flagged down a passing motorist, who took the two men to the City Hospital, where they were interrogated by Officer Ziercher, a member of the metropolitan police force, who was assigned to the hospital's receiving room at the time. His duty was to inquire into any case in which the police department was concerned where there was "no officer with it", and then to notify the district in which the occurrence had taken place.

Officer Ziercher testified that after getting the preliminary details of the accident from plaintiff, with the same verified by Edster, he called the proper district, which then sent Officer Omohundro to the hospital to take over the case and make out the police report.

This case is what is referred to as a "no report" case, by which is meant that no report of the occurrence was made by the motorman, as it was his duty to do if he knew of an injury to a passenger on his car. Lacking a report, defendant was evidently prompted to join issue upon the question of whether plaintiff had been injured as he claimed, with the matter further complicated by an uncertainty that arose over the number of the car in which he had allegedly been riding when the accident occurred.

Plaintiff testified that he himself paid no attention to the number of the car. Dr. Seib's record showed that according to the information given him, the number of the car was 715. He was uncertain about which of the men had given him the number but thought Edster "might have". Edster "was the one did the talking". On the other hand, Officer Omohundro testified that when he called at the hospital to get the details for the police report, Edster told him that the number of the car was 751. Plaintiff had not told him the number "at all". Defendant's own records showed that while cars of the 700 type had been operated on the Jefferson Avenue line on the day in question, neither 715 nor 751 had been among them, but instead car 715 had been taken out on the Broadway line, and car 751 on the Southhampton line.

It is thus to be observed that Edster's name had figured very prominently throughout the evidence; and as a final step in the presentation of his case, plaintiff's counsel offered to read Edster's deposition, which he had theretofore taken in his office. Defendant's counsel promptly objected to the deposition upon the ground that "the witness is present in court at this very moment", to which the court added, "Yes, sitting right here." Plaintiff's counsel replied, "I want the record to show whether they object to me reading it or not. If they do, it is all right." The court then...