Franklin v. St. Louis & M. R. R. Co.

• Decision Date: 24 May 1905
• Citation: 87 S.W. 930,188 Mo. 533
• Parties: FRANKLIN v. ST. LOUIS & M. R. R. CO.
• Court: Missouri Supreme Court

87 S.W. 930

188 Mo. 533.

FRANKLIN v. ST. LOUIS & M. R. R. CO.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

JURY — VERDICT BY NINE — CONFLICTING EVIDENCE — QUESTION TO PHYSICIAN — STREET CARS — STOPPING TO DISCHARGE PASSENGER — INSTRUCTIONS — REMARKS OF COUNSEL.

1. No right under the United States Constitution is violated by the Missouri constitutional amendment authorizing a verdict in a civil case by three-fourths of the jury.

2. A verdict on conflicting evidence can be set aside on appeal only where it appears to have been the result of prejudice and passion.

3. To obtain from the physician who attended plaintiff his opinion, based on his own knowledge of the case, whether the symptoms of pain in the head from which plaintiff testified she still suffered were probably caused by the injury received in the accident in question, is the fair purpose of the question: "In view of what you had seen when you first visited her, and in view of the fact that you continued to treat her, and that she has remained under your care to the present day, and in view of the fact that she now claims she is still suffering from pains in her head, I will ask you, in your opinion as a physician, would those pains that she claims to suffer be caused, or be likely to be caused, by the injury to her head for which you treated her?"

4. Though an ordinance required defendant street railway company to stop its cars on the far crossing, yet, cars having frequently, to plaintiff's knowledge, been stopped at the place of the accident before reaching the far crossing, to receive or discharge passengers, and she having signaled the car to stop to let her off, she had a right to suppose, on its stopping before it reached the far crossing, that it stopped to let her off, so that, there being no suggestion that it stopped for any other purpose, defendant cannot complain that the jury were authorized to find that it was stopped for such purpose.

5. It is not error to refuse an instruction in effect a repetition of instructions given.

6. The remarks of plaintiff's counsel that he was tricked by defendant not calling to the stand one subpœnaed by it, and that a certain witness was a perjurer and a villain, though not justified by the record and improper, are not ground for reversal.

Appeal from St. Louis Circuit Court; A. Talty, Judge.

Action by Jennie Franklin against the St. Louis & Meramec River Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Jefferson Chandler and J. Lionberger Davis, for appellant. John J. O'Connor, for respondent.

VALLIANT, J.

This is an appeal from a judgment for $2,500 rendered May 20, 1902, in favor of plaintiff, on a verdict for that amount concurred in by only nine of the jury. Defendant, in a motion for a new trial, made the point that an instruction given the jury by the court to the effect that nine of their number could return a verdict was in violation of defendant's right to a trial by jury, as guarantied by the Constitutions of this state and of the United States. In Gabbert v. Ry. Co., 171 Mo. 84, 70 S. W. 891, decided December 24, 1902, that subject was put at rest, and since then a question as to the validity of our constitutional amendment authorizing three-fourths of the jury to render a verdict in a civil case in a court of record has not been regarded by us as a live question. But as the appeal in this case was taken before the decision in that case, it was properly taken to this court, and we will entertain jurisdiction of it. It is only necessary for us now to say that no constitutional right of defendant was violated in the action of the court in giving the instruction above referred to, or in receiving the verdict in which only nine of the jury concurred.

Plaintiff fell while in the act of alighting from one of defendant's street cars, and received personal injuries. The petition states that the car had stopped to allow her to alight, and while she was in the act of doing so it was negligently started, and she was thereby thrown to the ground. The answer was a general denial and a plea of contributory negligence.

The testimony on the part of plaintiff was to the following effect: The defendant operates a street railroad extending from Fourth street out to the western city limits and beyond. A part of the route is through Manchester avenue, which, in its main course, runs east and west, and across Knox avenue. What is called "Knox Avenue" is far out towards the western suburbs, and is really a very short, unimproved street. It begins at Manchester avenue, and runs south only two or three squares. North of Manchester avenue there is no street at that point. It is an open field. But on the north side of Manchester avenue, on a line with the west line of Knox avenue, is a street lamp, and there is a brick walk crossing Manchester avenue on that line. Street cars going west usually stop with the rear platform at that brick walk, but not always. They sometimes and not unfrequently stop from 15 to 30 feet east or west of the brick walk to discharge or receive passengers. The accident in question occurred on the evening of December 6, 1901, about 5 o'clock, when it was dark, or nearly so. Plaintiff, as a witness in her own behalf, testified that on the evening in question she was returning home in one of defendant's cars, and that as the car approached Knox avenue she gave the signal to indicate that she wished to stop at that point. The conductor gave the signal to the motorman, and the speed of the car began to slow down, and while it was so slowing down she arose and walked out on the rear platform, where the conductor was. She said the car "was just on the point of stopping when I went to the door. I was not there a half a second when it stopped, and when it came to a perfect standstill. I walked to the steps, and had my foot just in the act of stepping down, when it jerked and threw me from the car; and I knew nothing that happened after that, for I was perfectly unconscious." The point where she fell was about the middle of Knox avenue; that is, about 30 feet east of the brick walk above mentioned. There were two boys, 14 years old, standing on the brick walk, near the lamp-post, who testified that the car stopped before it reached the brick walk, and started again, and caused the plaintiff to fall from the step into the street. Each boy testified, however, that he was looking west when the car approached, and did not notice it until some one said that the lady had fallen, when he turned around and looked. They testified that the car stopped first with the front end at or near the brick walk, then started again, and stopped with the rear end 15 feet west of the brick walk. The evidence tended to show that the plaintiff received serious injuries. She was lifted up in an unconscious condition, and carried into a little house used by the watchman on the Missouri Pacific Railway, which was near.

The testimony for the defendant tended to prove as follows: The motorman testified that as he approached Knox avenue he received the conductor's signal to stop at that point, and in due time he slowed down, and stopped his car with the rear platform at the brick walk. He waited for the signal to start, but, not receiving it as expected, he looked back, and saw them helping a lady to arise. He opened the gate on the platform and walked back, and, on inquiry, was informed that the lady had fallen off or had jumped off the car. He testified that there was but one stop; that the car did not stop until it stopped with the rear platform at the brick walk. The conductor testified that, when the car was slowing down to stop at Knox avenue, the plaintiff and another young lady, who was with her, arose and came out on the rear platform, where he was standing, as if intending to alight. He spoke to them, and said, "Ladies, please wait until the car stops." Then he turned to close the door of the car, as it was cold, and as he did so the plaintiff attempted to step off the car while it was moving, and fell. The other young lady remained on the platform until the car stopped at the brick walk, and alighted in safety. There were two passengers on the car, whose testimony corroborated that of the conductor. The other young lady mentioned was present in court during the trial, having been subpœnaed by defendant, but was not called to testify, except by the plaintiff in rebuttal; and she testified that she did not see one of the witnesses for defendant, who had testified that he was standing...