Goodwin v. Wells

• Decision Date: 01 June 1926
• Citation: 285 S.W. 112,220 Mo.App. 1
• Parties: JANE GOODWIN, RESPONDENT, v. ROLLA WELLS, RECEIVER OF UNITED RAILWAYS COMPANY OF ST. LOUIS, APPELLANT.
• Court: Missouri Court of Appeals

285 S.W. 112

220 Mo.App. 1

JANE GOODWIN, RESPONDENT, v. ROLLA WELLS, RECEIVER OF UNITED RAILWAYS COMPANY OF ST. LOUIS, APPELLANT.

Court of Appeals of Missouri, St. Louis

June 1, 1926

Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Miller, Judge.

AFFIRMED.

Judgment affirmed.

Charles W. Bates, T. E. Francis and Austin E. Park for appellant.

(1) The court erred in overruling defendant's demurrers offered at the close of plaintiff's case and at the close of the entire case, because: 1. Plaintiff's petition does not state facts sufficient to constitute a cause of action against defendant, in that it fails to allege that the cause of plaintiff's alleged fall was an unusual movement of the car, and it affirmatively appears that the petition counts upon a recovery for an injury sustained by reason of the ordinary, usual and incidental movements of the car. Rosenzweig v. Wells, 273 S.W. 1071; Laycock v U. R. Co., 290 Mo. 344; Bobbitt v. U. R. Co., 168 Mo.App. 424. 2. The evidence fails to disclose an unusual or violent movement of the car, and affirmatively shows that the cause of plaintiff's alleged fall was the ordinary usual and incidental movements of the car which do not constitute actionable negligence. Myers v. Wells, 273 S.W. 110; Traynor v. Wells, 273 S.W. 1100; Rosenzweig v. Wells, 273 S.W. 1071; Rhodes v. Mo. Pac. R. R., 213 Mo.App. 513. (2) The trial court erred in overruling defendant's motion for a new trial, on the ground of excessiveness of the jury's verdict. The alleged fracture of a bone in plaintiff's foot was admittedly but a callous on the top of the bone without a fracture, and all other alleged injuries were purely subjective and inconsequential. The size of the verdict is such as to shock the conscience of the court. Lundahl v. Kansas City, 209 S.W. 564; Adams v. St. Rys., 174 Mo.App. 5.

Earl M. Pirkey for respondent

(1) When a passenger is alighting any motion of the car is negligence. Millar v. St. Louis Transit Co., 215 Mo. 619. (2) Opening and leaving the rear door open before the street car came to a stop and then causing the car to give a sudden jerk together constitute negligence, and this is true regardless of whether the jerk is an unusual jerk or not. Millar v. St. Louis Transit Co., 215 Mo. 619; Resenzweig v. Wells, 273 S.W. 1073; Keppler v. Wells, 238 S.W. 430. (3) A sudden jerk is an extraordinary movement of a street car. Hibbler v. Kansas City Railroads Co., 292 Mo. 21. (4) It is actionable negligence for the street car door to be thrown open before the street car stops and while the door is open to cause the car to give a sudden jerk and it is not necessary in such cases to either plead or prove that the jerk was an unusual or extraordinary jerk. Laycock v. United Railways Company, 290 Mo. 351; Rosenzweig v. Wells, Rec., 273 S.W. 1074. (5) The verdict is not excessive. Kuether v. Kansas City Light & Power Co., 276 S.W. 1005.

NIPPER, J. Daues, P. J., and Becker, J., concur.

OPINION

NIPPER, J.--

This is an action for damages for personal injuries, alleged to have been sustained by plaintiff while attempting to alight from one of defendant's street cars. The injury occurred near the intersection of Compton and Franklin Avenues, in the city of St. Louis.

The ground of negligence counted on in the petition is:

"That on said day, after plaintiff had so taken passage and while she was a passenger on said car and said car was some distance west of said Compton avenue and was approaching said Compton avenue and said car was in motion, defendant negligently opened the rear door of said car and negligently caused and permitted it to remain open until plaintiff was injured as hereinafter mentioned and negligently caused and permitted a sudden check in the speed of said car while said rear door of said car was open, whereby plaintiff was caused to fall and be thrown from said car to the street," etc.

The answer was a general denial.

The defendant requested instructions in the nature of demurrers at the close of the plaintiff's case and at the close of the whole case. These were refused, and the case was given to the jury. The jury returned a verdict in favor of plaintiff, and against defendant, in the sum of $ 4000, and defendant appeals.

The evidence offered on the part of the plaintiff shows that, on October 8, 1922, plaintiff was a passenger on defendant's eastbound car on Franklin avenue. The car was crowded with passengers. Plaintiff rang the bell before the car had reached the street intersection, and started crowding her way to the rear end of the car to get off. When asked the question as to how she got hurt, she answered as follows:

"Well, I rang the bell to get off before I got to Compton, between Compton and Channing, and the street car was lined with people on the rear end and I gets up to make it to the door and the street car door was threw open and the car was yet running, and all of a sudden it made a jerk and gave me a jerk like that and I could not catch and I fell, and I fell on the right side with the right foot bent back under me, and I found myself--there was two men and a woman trying to pull me up. They got me up and got me to the curbstone, and then the conductor saw me, and when the conductor saw me--"

Two persons who were present helped her to her home, which was a short distance away. She was forty-five years of age, and by occupation worked as a cook and maid. She said she was not able to work for six months. She described her injuries in the following language:

"My right foot was unlocated. I was unable to walk on it and my right arm I couldn't carry it at all; this side and the small part of my back I suffered five weeks; couldn't sleep at all at night."

She said the car went past the usual stopping place before it stopped, and was going a little faster than a person would walk when it passed the regular stopping place; that the jerk was caused by the sudden stopping of the car.

The evidence of the doctors showed that there had been a fracture of one of the bones in the ankle of the right foot. One of the doctors stated, when asked the question...