Fairley v. St. Louis Public Service Co., 31735

• Citation: 389 S.W.2d 378
• Decision Date: 16 March 1965
• Docket Number: No. 31735,31735
• Parties: Osie FAIRLEY, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 378

389 S.W.2d 378

Osie FAIRLEY, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.

No. 31735.

St. Louis Court of Appeals, Missouri.

March 16, 1965.

Motion for Rehearing or for Transfer to Supreme Court Denied

April 12, 1965.

Gerald D. Morris, St. Louis, for defendant-appellant.

Samuel A. Goldblatt, St. Louis, William L. Mason, Jr., Galena, for plaintiff-respondent.

BRADY, Commissioner.

As a result of the first trial of this case, the plaintiff recovered judgment against the defendant in the amount of $2,000.00 for damages for injuries allegedly sustained while she was a passenger on a bus operated by the company. On appeal this court held the submission to the jury on the theory of res ipsa doctrine was proper but remanded the case for retrial on the issue of damages only. See Fairley v. St. Louis Public Service Co., Mo.App., 352 S.W.2d 393. On application by the company the cause was transferred to the Supreme Court of this state which held the submission improper and remanded the cause. See Fairley v. St. Louis Public Service Co., Mo., 362 S.W.2d 549. Upon retrial judgment was entered in plaintiff's favor in the amount of $2,300.00 and the company has perfected this appeal.

The plaintiff pleaded that when plaintiff arose from her seat in order to alight from the bus, she was caused by the carelessness and negligence of the defendant to violently and suddenly come into contact with the seat of the bus and sustained painful and permanent injuries. This is the same pleading under which this case was originally tried. See Fairley v. St. Louis Public Service Co., Mo.App., 352 S.W.2d 393, l.c. 394.

Although this is the second trial of this cause, we need not set out the factual situation at any length. The defendant admits and indeed relies upon its statement that essentially the same factual situation is here presented as was before this court and the Supreme Court as a result of the first trial. This admission is binding on the defendant. Pritt v. Terminal R.R. Ass'n, of St. Louis, Mo., 251 S.W.2d 622. That being the case we will not burden this opinion by restating the general factual situation but will state those facts bearing upon the issues raised in this appeal and refer the reader to the two earlier opinions in this cause for a complete and detailed statement. Those facts necessary to this appeal show that plaintiff was a passenger on a bus operated by the defendant. Plaintiff pulled the cord which operated the buzzer signaling her intention of getting off the bus at the next stop. She was sitting next to a window. When plaintiff stood up, she struck her leg on 'something.' She then noticed her leg was cut. The man who had been sitting next to her gave her a handkerchief which another passenger, a Mrs. Thompson, tied around plaintiff's leg. Later she was taken to a hospital. Plaintiff did not examine the seat. However, Mrs. Ruby Thompson, plaintiff's witness who had aided plaintiff with her injuries, testified that she did examine the seat and found an object protruding from the seat which she described as a jagged flat piece of metal. She testified she examined some of the other seats and found nothing similar.

Dr. E. C. Funsch had appeared as the company's witness in the first trial. He was deceased at the time of the second trial and his testimony from the first trial was read into evidence at this trial. In his testimony, while being cross-examined by plaintiff's counsel, the following occurred: 'Q Now, Doctor, assuming these facts to be ture, Doctor, that there was a woman who boarded the Union Avenue bus, took a seat, and after sitting awhile on the bus started to alight from the bus, getting off the seat, as she was getting off the seat she felt a stinging or some kind of pain right there and the blood started coming out of the leg right there; with reasonable medical certainty, Doctor, is it your opinion that this scar you have found on Mrs. Fairley could have come from that sort of a laceration, or cut, or movement on the bus? Mr. Schmidt: Object to that, your Honor, that calls for speculation on the part of the doctor. The Court: overruled. Mr. Goldblatt (continuing): You may answer, Doctor. A Well, if that is where she cut it, then I would have to take her history. Q Now, Doctor, I am going to call your attention to Defendant's Exhibit A and ask you to look at these two metal clamps on the sides of it, Doctor, and ask you to move the seat this way, please, Doctor. (indicating) (The witness moves, seat).' The transcript shows that defendant's counsel broke into the reading of Dr. Funsch's testimony to object to reading Funsch's testimony about the seat on the ground that this was not the same seat as that used as an exhibit in the first trial. The objection being overruled, the following occurred: 'Q Would a person brushing against one of those, would that cause a laceration? A Sure. Mr. Schmidt: I would like to object to that as calling for speculation on the part of the Doctor. The Court: He is qualified as an expert. The objection is overruled. A I don't think it takes an expert to tell that. You could skin your shin on that. Q That's right, Doctor, it doesn't take an expert to tell that it could, you could get cut from that, isn't that right? A If it hits right there.'

The plaintiff submitted her case under Instruction No. 1 which required the jury to find that the plaintiff was a fare-paying passenger on the defendant's bus; that she sat in the seat described in evidence; and that '* * * it was the duty of St. Louis Public Service Company to exercise the highest degree of care to furnish plaintiff a seat which was reasonably safe and not likely to cause injury * * *.' The instruction continued to hypothesize that if the jury found that the '* * * seat in which plaintiff sat was not reasonably safe and likely to cause injury in that a metal strip protruded from the bottom of the seat and that said metal strip rendered the equipment or seat of the bus dangerous or unsafe; and if you further find that plaintiff was injured by this metal strip and that such failure and negligence of St. Louis Public Service Company was the proximate cause of said injury * * *.' Based upon these hypothesizations the verdict was to be for the plaintiff.

The first allegation of prejudicial error is that the trial court erred in failing to sustain the company's motion for a directed verdict on the grounds that, for any one of several assigned reasons, the plaintiff failed to make a submissible case on a theory of specific negligence. That matter is not for our ruling. It has been settled by the opinion of our Supreme Court in the first appeal. Therein the court specifically held that plaintiff made a case for the jury on the theory of specific negligence. See Fairley v. St. Louis Public Service Co., 362 S.W.2d 549, l.c. 652, . That being so and since the factual situation presented in the second trial was essentially the same, we must hold the plaintiff made a submissible case of specific negligence. Pritt v. Terminal R.R. Ass'n of St. Louis, Mo., 251 S.W.2d 622, [1, 2].

The company then urges that the plaintiff '* * * failed to make a case upon the theory upon which she pleaded the case' and therefore the trial court prejudicially erred when it overruled '* * * defendant's motion for a directed verdict * * *.' The company does not state which motion for a directed verdict it refers to, that filed at the close of plaintiff's case or that filed at the close of all the evidence. Neither does it give any citation to a page of the transcript so that matter can be discovered. The plaintiff contends that since it only refers to plaintiff's evidence, the company must have reference to the motion for directed verdict filed at the close of plaintiff's case. Plaintiff then points out that the company waived any point it may have had as to the overruling of that motion by proceeding to offer evidence. The company was under a duty to state the evidence in the best light to the plaintiff that prevailed in the trial court. Moreover, it is reasonable to assume the company's counsel was familiar with the rule regarding waiver by proceeding to offer evidence after a motion for a directed verdict offered at the close of plaintiff's case has been overruled. Accordingly, we will construe this allegation of prejudicial error as going to the trial court's action in overruling the company's motion for a directed verdict offered at the close of all the evidence.

In support of this contention the company argues that since plaintiff '* * * pleaded her case on the theory of res ipsa loquitur (R. 4), according to the Supreme Court opinion in 362 S.W.2d 549 * * *' she made no case under her pleading...