Deming v. Wells

• Decision Date: 02 June 1925
• Docket Number: No. 19005.,19005.
• Citation: 273 S.W. 128
• Parties: DEMING v. WELLS.
• Court: Missouri Court of Appeals

273 S.W. 128

DEMING v. WELLS.

No. 19005.

St. Louis Court of Appeals. Missouri.

June 2, 1925.

Rehearing Denied June 24, 1925.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Louise Deming against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and Austin E. Park, all of St. Louis, for appellant.

Mark D. Eagleton, E. J. Hullverson, and Harry S. Rooks, all of St. Louis, for respondent.

NIPPER, J.

This is an action for damages on account of personal injuries alleged to have been sustained by plaintiff about 9 o'clock p. m., on December 27, 1922, near the northwest corner of Union avenue and Delmar boulevard, in the city of St. Louis. Plaintiff recovered judgment in the sum of $3,000, and defendant appeals.

There were various assignments of negligence in the petition, but plaintiff asked for and received instructions submitting only one assignment, namely, the violation of the vigilant watch ordinance, thereby abandoning all other assignments of negligence in the petition. The answer was a general denial, coupled with a plea of contributory negligence.

There were only two persons who saw the accident, and who testified in this case. One was the plaintiff, and the other was Mr. Nichols, an inmate of the Masonic Home. The Masonic Home is situated on Delmar boulevard, a short distance west of this street intersection.

From the plaintiff's evidence it appears that she had been out in the western part of the city, and had started to her home on Olive street. To go there by way of street car, she boarded a Union avenue car north of Delmar boulevard. When she had reached Delmar boulevard, going south, she alighted from the street car at the stopping point, and traveled in a southwesterly direction until she reached the curb at the northwest corner of Delmar and Union. She then traveled directly south to cross Delmar boulevard, for the purpose of boarding an east-bound Delmar car when one should approach from the west. The defendant maintains a doubletrack street railway on both Union avenue and Delmar boulevard. Union avenue runs north and south, and Delmar boulevard approaches Union from the west from a slightly northwestern direction, and not directly from the west, thus making a sharp angle at this northwest corner. There is a car track, which leaves the Union avenue line at this point and turns west in a curve to Delmar boulevard in a westerly direction.

Plaintiff described the night as being a "foggy, ugly, raining night." She testified that when she had almost reached this track, which turns to the west from Union, she looked east and west and saw there were no cars on Delmar to prevent her crossing the street, and when she had reached about the center of this track, which turns west from Union, she was struck by defendant's street car, and received the injuries hereafter referred to. She said she thought the Union avenue car would continue south, and did not expect it to turn west on this curved track. She was not particularly acquainted with how the cars were operated on the Union avenue line. The width of these streets, or the distance the car tracks are from the curbing, is not disclosed by the evidence. She said she had never seen a southbound car turn westwardly on this curved track at that point prior to the accident. She did not see the car from which she had alighted start again until, as she says, it was "right on me." She did not hear the car approaching, nor any gong or bell sounded. When struck, she was knocked down, and her back and shoulder were injured, as well as other parts of the body. She was confined to her room under the treatment of doctors for about two weeks. She was working at the Statler Hotel, and receiving $100 a month, with her meals furnished. She testified that she lost $50 in wages. She stated, with respect to the effect of her injuries, at the time of the trial:

"Why, my nerves are all to pieces, and my back hurts me at night, and after I sit for a long time I have severe pains in my shoulder, and any change of weather bothers me very much, as though it might be rheumatism."

Dr. Willhite testified that he was called to treat plaintiff when she received, her injuries; that plaintiff informed him that she had headache, and pain in the right shoulder and back; and that he could see that she was nervous. He treated her from the 27th of December, 1922, until the 8th day of January, 1923. He stated that he bandaged her shoulder, and noticed bruises thereon; that the condition in the shoulder may cause pain in the future; that he put adhesive straps on her back and near the dorsal region, and that these were on her when he quit treating her; that he diagnosed the case at that time as a wrenched back. His bill amounted to $34, which had not been paid. He also stated that he found a bruise on her left knee.

Dr. E. B. Kinder testified that he was called to treat plaintiff on the 18th day of January, 1923; that he found some inflammation of the right shoulder joint, owing to pain caused by inflammatory trouble, and found some injury to the sacroiliac joint, and some bruises and lacerations on the left knee, and some injury to the left shin bone below the knee. At the time of the trial he testified she still had some inflammatory condition in the shoulder and in the sacroiliac joints, and that such a condition would be likely to cause pain in the future, and in all probability would trouble the patient for a long time, "maybe as long as she lived."

The only evidence offered by the defendant as to the actual occurrence of the accident was that of A. A. Nichols, above mentioned. He testified that he was coming from the west on a Delmar car, and had alighted at this crossing and was proceeding north to the north curb line of Delmar, when he saw this car turning around the corner on this curved track, and when the front end of the car was about even with him he heard some women scream. The car went a few feet further, and stopped. He went around the rear end, and saw two women near the curb line. The car...