Gilmartin v. Wells

• Citation: 56 S.W.2d 623
• Decision Date: 07 February 1933
• Docket Number: No. 22236.,22236.
• Court: Court of Appeal of Missouri (US)
• Parties: GILMARTIN v. WELLS et al.

56 S.W.2d 623

GILMARTIN v. WELLS et al.

No. 22236.

St. Louis Court of Appeals. Missouri.

February 7, 1933.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be published in State Reports."

Action by Mary Ann Gilmartin, by Charles K. Berger, her next friend, against Rolla Wells, receiver of the United Railways Company of St. Louis, and another. From judgment for plaintiff, defendants appeal.

Affirmed.

T. E. Francis and B. G. Carpenter, both of St. Louis, for appellants.

Erwin F. Vetter, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries. Tried to a jury; a verdict was returned in favor of plaintiff for $1,020.83; and from the judgment rendered, defendants have duly appealed.

Plaintiff is an infant, and sues by Charles K. Berger, her next friend. The defendants are Rolla Wells, the receiver of the United Railways Company of St. Louis, and the latter's successor, the St. Louis Public Service Company. The accident happened on October 29, 1927, during the period of the receivership, and prior to the taking over of the property by defendant St. Louis Public Service Company. However, it is admitted of record that the latter has assumed any liability of the receiver on account of the accident.

On the evening in question, plaintiff's parents had been visiting a friend of the family who lived in Paulian Place, one block east of Union avenue, and some distance south of the Gilmartin home at 3321 Abner place, all in the city of St. Louis. Along with them was their daughter, Mary Ann, the plaintiff herein, who was at that time only eight years of age.

Around 10 o'clock in the evening, the Gilmartins started home upon a north-bound Union avenue street car, their destination being Ashland avenue, which was the point where they usually left the car in going to their home. Plaintiff had fallen asleep, and was being carried in her father's arms.

When the car came within a block of Ashland avenue, the father walked back to the rear of the car where the conductor was stationed, and called for the car to be stopped at the next stopping point. When the car reached Ashland avenue, alongside the safety zone which was marked out upon the street, it was brought to a stop, the rear door was opened, and the father, with plaintiff still sleeping in his arms, started to step down upon the street. As he was in the act of so doing, the car suddenly started forward "with a fast movement," causing him to lose his balance and to fall out into the street with plaintiff underneath him, in the course of which she received the injuries for which she has sued.

The testimony for plaintiff was that her father was the first passenger to attempt to alight from the car; that the point where he fell was at the south end of the safety zone; and that when the car came to the second stop it had entirely cleared the safety zone, having run some fifty or sixty feet before the motorman was apprised by the cries of plaintiff's mother, who was still in the car, that an accident had occurred.

Defendants' evidence was all to the effect that the car did not move forward at all, but that plaintiff's father fell with her while the car was at a standstill.

The gist of the negligence charged was that while the father, with plaintiff in his arms, was in the act of alighting from the car, the servants and employees in charge thereof "negligently and carelessly caused and permitted said street car to be suddenly started forward at a rapid rate of speed, thereby causing plaintiff to be thrown to the street and her father to be thrown heavily upon her body, with great force, all of which directly and proximately resulted in the injuries" which were thereafter enumerated.

Defendants answered to the merits of the case by a general denial.

Defendants' first and principal claim of error goes to the giving of plaintiff's instruction No. 1, which reads as follows: "The Court instructs the jury that if you find and believe from the evidence that on the 29th day of October, 1927, plaintiff was a passenger upon a northbound Union Avenue street car * * *; and if you further find and believe from the evidence that plaintiff's father signaled the motorman in charge of said street car of her intention to alight at Ashland Avenue * * *; and if you further find and believe from the evidence that said street car was stopped at Ashland Avenue, and that defendant's conductor in charge of said street railway car opened the exit door, if you so find, and that plaintiff was being carried in the arms of her father, and that while said plaintiff's father was in the act of stepping off of said street car and alighting therefrom, the agents and servants * * * negligently and carelessly caused and permitted said street car to start suddenly forward, if you so find, causing plaintiff to be thrown into the street, and that plaintiff was thereby injured as a direct result thereof, if you so find, then plaintiff is entitled to recover. * * *"

Much of the criticism of the instruction is based upon a misconception of what was the most favorable evidence for plaintiff. Bearing in mind that the instruction predicated a recovery upon a finding that the car was stopped, and that while plaintiff's father was in the act of alighting therefrom the same was suddenly started forward, counsel argue that the basic predicate of liability was unsupported by the evidence, in that the father's testimony, fairly interpreted, was that he attempted to alight from the car while it was still in motion. Whether or not any portion of his testimony might have been so interpreted we need not determine, for there was an abundance of positive evidence, both from the father and from other witnesses, which directly supported the precise charge of negligence submitted to the jury. So much, therefore,...