Duffy v. St. Louis Transit Co.

• Decision Date: 02 February 1904
• Court: Missouri Court of Appeals
• Parties: DUFFY v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

78 S.W. 831

104 Mo. App. 235

DUFFY v. ST. LOUIS TRANSIT CO.^*

Court of Appeals at St. Louis, Missouri.

February 2, 1904.

STREET RAILWAYS—PERSONAL INJURIES—NEGLIGENCE —EVIDENCE — SUFFICIENCY — DAMAGES —IMPAIRMENT OF EARNING CAPACIT— PLEADING—NONSUIT.

1. On the question as to whether or not there should be a compulsory nonsuit, the evidence should be considered in its most favorable aspect for the plaintiff.

2. In an action against a street railway company for personal injuries received by a passenger in alighting from a car, evidence examined, and held to tend to show the negligence alleged, and not to warrant a nonsuit.

3. A passenger on a street car whose ankle was broken, and remained weaker than the other ankle, was entitled to compensation for future pain and suffering and impairment of earning capacity, though he continued doing the same work and receiving the same wages as before the injury.

4. Where, in an action against a street railway company for injuries to a passenger, there was no plea of contributory negligence, there was no occasion for an instruction that issue of such negligence was not in the case.

Bland, P. J., dissenting in part.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by James Duffy against the St. Louis Transit Company for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. A. R. Taylor, for respondent.

BLAND, P. J.

After alleging that plaintiff was a passenger on one of defendant's street railway cars, and the contract to carry him to his place of destination (Clara and Easton avenues, in the city of St. Louis), and the duty to stop the car a reasonable length of time to let plaintiff off, the petition proceeds as follows: "Yet the plaintiff avers that the defendant, unmindful of its said undertaking and of its duty in the premises, did, by its servants in charge of its said car, carry the plaintiff past his said point of destination, and thereafter, to wit, as said car was approaching the intersection of Easton and Goodfellow avenues, at the request of the plaintiff, did slow down said car until it was stopped or moving very slowly at or near said Goodfellow avenue and Easton avenue, in the city of St. Louis, and invited the plaintiff to alight from said car whilst so stopped or slowed down. That the plaintiff, in obedience to such invitation to alight from said car whilst so stopped or slowed down, proceeded to the platform and step of said car to alight therefrom, and was proceeding to alight from said car, and whilst he was in the act of doing so, and before he had a reasonable time or opportunity to do so, defendant's servants in charge of its said car negligently caused and suffered said car to be started forward, whereby the plaintiff was thrown from said car to the street and dragged, and greatly and permanently injured upon his body and legs and internally, sustaining a fracture of the bones of his right foot and ankle, and bruises upon his body and arms and his leg and knee."

Plaintiff testified that he was a passenger on one of defendant's Easton avenue cars, and that his destination was Clara and Easton avenues. He further testified as follows: "Q. Why was it you did not get off at Clara that night? A. Through a mistake of mine. Q. Through a mistake of what? A. My own mistake. Q. Now, after you passed Clara, and ascertained that you had passed Clara, tell the jury what you did to indicate that you wanted to get off the car, and where. A. I got off the car at Goodfellow avenue —about 25 yards west of Goodfellow avenue —when we went by this side of Rinkle's Grove. That is how I seen I was too far ahead. Q. When you had found out you had passed your point of destination, tell the jury what you did. Tell the jury what you did to indicate to the motorman or conductor you wanted to get off the car. A. When I seen this I shoved down to ring the bell for the car to stop at Goodfellow avenue. He was in the front part of the car, standing sidewise, some transfers in his hand, counting them. He changed the transfers to one hand from the other; put up his left hand to the bell; as he did that I walked out, the car going below speed as it approached; I stepped out and fell. There was not out there any houses the south side until you get to Blackstone avenue, the nearest building. A few houses on the north side. Q. When you walked out, what did the car do towards slowing down or stopping? A. She slowed down until about 25 yards, maybe 30, a little less or more, west of Goodfellow avenue. Q. Did it come to a full stop? A. No, sir; it did not. Q. How was it moving, how slow, at the time you got on the step as you were about to step off? A. About an ordinary walk would keep up with it. Q. An ordinary walk? A. About an ordinary walk. Q. When you stepped off the car, tell the jury what occurred; what did the car do? A. Well, in some way, I believe, the brake didn't work on the car; he started the car too sudden on me. I had my foot up as the car slowed up. I...