Dreyfus v. St. Louis & S. Ry. Co.

• Decision Date: 30 April 1907
• Citation: 124 Mo. App. 585,102 S.W. 53
• Court: Missouri Court of Appeals
• Parties: DREYFUS v. ST. LOUIS & S. RY. CO.

102 S.W. 53

124 Mo. A. 585

DREYFUS v. ST. LOUIS & S. RY. CO.

St. Louis Court of Appeals. Missouri.

April 30, 1907.

Rehearing Denied May 14, 1907.

1. EVIDENCE — ADMISSIONS — COMPETENCY.

Plaintiff, in an action for injury received by the premature starting of a street car while she was alighting at a point between cross-streets, admitted on cross-examination that she had stated in a deposition that the car did not stop at all, but explained that she was confused and misunderstood; that she meant the car did not stop at the last street passed before she got off, for which she had signaled a stop. Held, that it was improper to exclude the notary's testimony that plaintiff stated several times in her deposition that the car was not stopped at all.

2. APPEAL — REVIEW — ADMISSION OF EVIDENCE — OBJECTION NOT RAISED ON MOTION FOR NEW TRIAL.

Defendant's exception to the admission of evidence is not reviewable, where the admission of incompetent or irrelevant evidence was not stated as a ground for new trial; a ground that the verdict "is against the law" being insufficient to comprehend an erroneous ruling on the admission of evidence.

3. SAME — EXCEPTIONS NOT RESERVED.

Defendant cannot base error on questions asked a witness, where no exceptions were taken thereto, though objections were made; and it makes no difference that defendant might have prejudiced its case before the jury had it stated the reasons for the objection and excepted to the court's action.

4. WITNESSES — EXAMINATION BY COURT — DISCLOSURE OF OPINION AS TO VERACITY.

Though a trial judge may question a witness, his examination should be guarded so as not to give even a hint of his opinion as to the witness' veracity, or any impression he may have as to the merits of the case.

5. CARRIERS — STREET RAILWAYS — STOPS — RULES — BINDING EFFECT UPON PASSENGERS.

If a conductor stops a car in violation of a company's rule prohibiting stops between cross-streets at a passenger's request to allow her to alight, and while she is alighting the car starts, causing her injury, the rule affords no defense, for the conductor is the company's vice principal for the time, and the company is liable for his acts in negligently starting the car.

6. DAMAGES — PERSONAL INJURY — DEAFNESS CAUSED BY NERVOUS SHOCK.

Plaintiff's deafness, resulting from a nervous shock received when injured, is a proper element of damages.

7. TRIAL — INSTRUCTIONS — NECESSITY FOR REQUEST.

If plaintiff's deafness, resulting from a nervous shock received when injured, was not a proper element of damages, where the court instructed that on a verdict for her she was entitled to compensation for such injury as she received and for such pain of body and mind as she suffered as a direct result of the injury, if defendant desired to have the element of deafness eliminated from the estimate of damage, it should have asked an instruction to that effect.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by Fannie Dreyfus against the St. Louis & Suburban Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

On July 4, 1905, plaintiff and her daughter took passage on one of defendant's street cars at Delmar Garden, and paid their fare, intending to travel east to the intersection of Wash and Nineteenth streets, in the city of St. Louis. The car did not stop when it reached Nineteenth street, and the plaintiff, in attempting to get off the car between Nineteenth and Eighteenth streets, either fell, or was thrown, off and severely and painfully injured. The action is to recover for these injuries. The negligence alleged in the petition is that, at plaintiff's request, the conductor caused the car to be stopped in the middle of the block between Nineteenth and Eighteenth streets to let her off; that after it had stopped, and while plaintiff was in the act of alighting, the car was negligently started forward, causing her to fall on the street, lighting on her head. The answer was a general denial. The evidence for the plaintiff tends to show that she gave a timely signal to stop the car at Nineteenth street, and she and her daughter left their seats in the car, and stepped out on the back platform to be ready to get off at Nineteenth street; but, as the car did not stop, plaintiff did not undertake to get off, but asked the conductor, who was standing on the back platform, why he did not stop the car, and informed him she had intended to get off at Nineteenth street. The conductor then signaled the motorman to stop the car, and it was stopped about the middle of the block, when plaintiff proceeded to descend the steps to get off; but before she reached the ground the conductor gave a signal to the motorman to go ahead, and the car was started forward with such force as to cause plaintiff to fall from the steps to the street. As a result of the fall, plaintiff received a cut on the top of her head and bruises on her limbs and body. The defendant's evidence tends to show that no signals were given to stop the car between Twentieth and Eighteenth streets, and, in fact, no stop was made until Eighteenth street was reached; that between Nineteenth and Eighteenth streets the grade was ascending to the east, and the car was traveling slowly—about four miles an hour—and plaintiff did not give a signal to the conductor to stop the car at Nineteenth street, nor did she ask him to stop it, or say to him that she wanted to get off at Nineteenth street; that in fact the conductor was not on the back platform, but was in the front end of the car at the time plaintiff undertook to get off the car; that between Nineteenth and Eighteenth streets plaintiff arose from her seat, went to the back platform, and attempted to get off the car while it was running about four miles an hour; that the conductor turned and saw her going to the platform, and, apprehending she would attempt to alight, called to her not to get off, but was too far away to reach her in time to prevent her from doing so. The jury returned a verdict for $1,500 in favor of plaintiff. A timely motion for new trial proving of no avail, defendant appealed.

Chandler & McChesney, for appellant. Edw. E. Rudolph, for respondent.

BLAND, P. J.

1. Prior to the trial, plaintiff's deposition was taken before a notary public on statutory notice. In her deposition, in answer to interrogatories propounded to her, plaintiff stated several times that the car did not stop for her to get off. Her evidence was taken down in shorthand by the notary. For the reason it was inconvenient for plaintiff to return to the notary's office, or on account of her indisposition, it was agreed between the parties that her counsel might sign her deposition for her after it had been written out in longhand. The deposition was placed in the hands of plaintiff's counsel, after it was written out in longhand, and to her answer that the car did not stop, he added, "not at Nineteenth street." In plaintiff's cross-examination at the trial, in regard to her testimony as given by deposition, appears the following: "Q. Did you state that the car never stopped at all in answer to this question, `Did it finally come to a stop or slow down?' and your answer is, `It never stopped at all.' Now, did you make that statement to that question? A. I did not understand please. The car did not stop at Nineteenth street. Q. Did you make that answer to that question? A. They puzzled me. Q. That is not the question. Did you answer that question in that way? A. My meaning was— Q. No argument; just answer. A. Yes, I meant the car did not stop at Nineteenth." Anna M. Houck testified as a witness for defendant as follows: "I am a stenographer with an...