Gignoux v. St. Louis Public Service Co.

• Decision Date: 06 June 1944
• Docket Number: No. 26608.,26608.
• Parties: GIGNOUX v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

180 S.W.2d 784

GIGNOUX v. ST. LOUIS PUBLIC SERVICE CO.

No. 26608.

St. Louis Court of Appeals. Missouri.

June 6, 1944.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be reported in State Reports."

Action by Elise Gignoux against the St. Louis Public Service Company to recover for injuries sustained by plaintiff while alighting from defendant's streetcar. Judgment for plaintiff, and defendant appeals.

Reversed and remanded for a new trial.

Moser, Marsalek & Dearing and Will B. Dearing, all of St. Louis, for appellant.

B. Sherman Landau, of St. Louis, for respondent.

ANDERSON, Judge.

Plaintiff filed this suit to recover damages because of the alleged negligence of the defendant in permitting plaintiff to alight from its streetcar at a point other than a regular stopping place and at a point not reasonably safe. There was a verdict and judgment for plaintiff, from which judgment defendant perfected this appeal.

The evidence offered on behalf of plaintiff tended to establish that on November 9, 1942, plaintiff, accompanied by her sister, boarded a Clayton-University streetcar at Tenth and Olive streets in the city of St. Louis. She intended to alight at Des Peres avenue, a north and south street. The car came to a complete stop on the east side of Des Peres avenue, at which point the defendant maintains a loading platform. After the car had stopped, plaintiff prepared to alight therefrom, but before she could do so the operator or motorman closed the door and the streetcar started forward. Immediately thereafter a passenger on the streetcar rang the signal bell, and the car was again brought to a stop, at which time the rear of the streetcar was ten feet west of the west sidewalk on Des Peres avenue, and the center exit doors were approximately thirty feet west of this sidewalk. The center exit doors were then opened, and plaintiff proceeded to alight. She testified: "I stepped off with my left foot, and as I did so my foot hit a rock, threw me off balance, and, naturally, dragged my whole body forward. * * * When I fell my ankle turned, and then threw me right flat on this left side, this whole left side was bruised."

The evidence shows that at this section the streetcars operate on a private right of way, which is not paved, and loose gravel lies between the rails of the tracks, and also between the north track and the street which runs east and west adjoining the right of way.

According to plaintiff's evidence, the surface of the right of way where she alighted sloped toward the north. She also gave evidence that at the point where she alighted the step-off from the lower step to the ground was 27 inches, while at the regular loading platform on the east side of Des Peres, it was 15 inches. She further testified that when she started to alight from the car at the time in question, she did not realize the difference between the two distances.

Defendant introduced evidence tending to establish that the westbound streetcar was brought to a complete stop on the east side of Des Peres, at which point two or three passengers alighted; that the plaintiff and her sister made no effort to alight at that point; but that after the car had started to cross the street, the signal bell was sounded, and the operator then brought the car to another stop.

According to the streetcar operator, the front end of the car had crossed Des Peres, and the exit doors, which were in the center of the car, were about one and one-half feet away from the Des Peres slab. The operator testified: "There is a good spot there."

Additional supporting evidence was introduced, tending to substantiate the operator's statement, that the point directly opposite the exit doors where plaintiff alighted was not rough or sloping.

The negligence charged in the petition was that:

"1. Defendant carelessly and negligently failed to provide plaintiff with a safe place to alight.

"2. Defendant carelessly and negligently invited defendant to alight at a place which was dangerous and unsafe.

"3. Defendant carelessly and negligently opened the exit doors of said streetcar as an invitation to plaintiff to alight at said unsafe and dangerous place.

"4. Defendant carelessly and negligently failed to warn plaintiff of the dangerous and unsafe condition of the place where defendant invited her to alight."

Plaintiff's principal instruction, after defining the duties of a common carrier, charged as follows:

"If you find and believe from the evidence that on the occasion mentioned in the evidence plaintiff was a passenger on the streetcar of defendant and that the place opposite the exit door of the streetcar upon which plaintiff was riding, when said streetcar was brought to a stop on the west side of Des Peres avenue, if you so find, sloped downward to the north and had loose gravel upon its surface and required a step-down in excess of 15 inches from the lower exit step of the streetcar, if you so find, and that because of said conditions, if you so find, said place was not reasonably safe for plaintiff to alight thereat;

"And if you further find and believe from the evidence that after the defendant brought its said streetcar to a stop at said place, it opened the exit door of said streetcar as an invitation to plaintiff to alight at that point, if you so find, and if you find that defendant in so doing, if you so find, failed to exercise the highest degree of care and was negligent, and if you find that as a direct result thereof the plaintiff was caused to fall and sustain the injuries mentioned in the evidence, if any, then your verdict will be in favor of the plaintiff and against the defendant."

Appellant's first complaint is that the court erred in permitting plaintiff's witness Thekla B. Snyder to testify, over the objection of defendant, that on the day following the accident she saw men engaged in filling in the right of way at the point where plaintiff fell.

The testimony complained of was offered in connection with a photograph, plaintiff's Exhibit A, which purported to show the site where the injury occurred; and was offered to explain why the photograph did not correctly represent the condition at the time of the accident. The witness was requested to state whether the photograph, which was taken on November 11, 1942, showed the conditions as they existed on November 9, 1942, the day of the accident. The defendant objected to the question on the ground that an effort was being made to show a change in condition following the accident, and that it was improper to show that an attempt had been made to remedy a condition, and from that point attempt to establish negligence on the part of the defendant. The objection was overruled, and defendant duly saved its exception. The witness then answered:

"A. Well, the accident occurred on November 10th.

"Q. No, it was November 9th. A. Ninth?

"Q. That it occurred, yes, ma'am. A. And that the day after is when I went to the streetcar to go downtown and saw the men filling in the car tracks and —

"Q. Can you show on that photograph where the change was made? A. Oh, yes, very easily.

"Q. No, I mean can you point it out to the jury where that change was made? A. Right in there.

"Q. Now, you are pointing, are you, to the embankment immediately north of the westbound car tracks? Is that correct? A. Yes.

"Q. Now, do you know how much or, rather, to what height that was filled in on the day of the accident? A. Very much, because when I went home I said —

"Mr. Dearing: Just a minute. Now, just a moment. You can't say — you can't repeat what you said, but — A. All right.

"Q. Does this photograph correctly show the appearance of that embankment and the track and the crossing after the embankment had been filled in? A. Yes.

The photograph was thereafter introduced in evidence. It shows the space north of the track filled in with gravel to about level with the bottom of the streetcar rail. The camera was so focused that in the foreground of the photograph appears only the area west of Des Peres avenue, showing a close-up view of the streetcar tracks, the area north of the tracks where ...