Hall v. St. Louis Public Service Co.
| Decision Date | 15 April 1952 |
| Docket Number | No. 28312,28312 |
| Citation | 248 S.W.2d 33 |
| Parties | HALL v. ST. LOUIS PUBLIC SERVICE CO. |
| Court | Missouri Court of Appeals |
Henry D. Espy, St. Louis, for appellant.
Carroll J. Donohue, H. Jackson Daniel and Salkey & Jones, St. Louis, Harold A. Donovan, St. Louis, of counsel, for respondent.
This is an action by Pruda Hall, as plaintiff, against the defendant, St. Louis Public Service Company, to recover damages for personal injuries alleged to have been sustained by plaintiff on November 6, 1948, while a passenger on one of defendant's streetcars. The trial below resulted in a verdict and judgment for defendant. From this judgment, plaintiff has appealed.
Recovery was sought on the theory of res ipsa loquitur, the petition alleging that while plaintiff was a passenger on one of defendant's streetcars she was caused to be seriously injured as a result of the carelessness and negligence of defendant in the operation of its said streetcar.
Plaintiff testified that on November 6, 1948, she boarded one of defendant's eastbound Hodiamont streetcars at Aubert Avenue, and while the streetcar was proceeding between Taylor and Newstead Avenues some glass fell on her. She stated:
On cross-examination, plaintiff stated that she was seated on the righthand side of the car, she alone occupying a double seat, but was seated next to the aisle. She stated:
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Plaintiff further testified that she imagined the streetcar was traveling about sixty miles per hour, and that it was stopped in about three or four feet.
There was evidence that plaintiff sustained an injury to her side and leg, and that two of her teeth were loosened as a result of the glass striking her. These teeth were afterwards extracted.
John Bergesch, the operator of the streetcar, testified on behalf of defendant. He stated that on the occasion in question he heard a crash and some one shout, 'Stop the car,' and that he also heard glass fall. He further stated that the streetcar had been moving about twenty miles per hour and that he made a normal feet. He then went back into the car to find out what the trouble was and saw a window broken on the right side of the car and a rock about the size of a hen's egg lying in the aisle next to the seat occupied by plaintiff. He stated that he asked Mrs. Hall what happened and she replied that a rock had hit her in the face. He said that Mrs. Hall also stated she was not hurt.
Velma Imogene Murray, who was a passenger on the car, testified:
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Linton J. Harris, who was also a passenger on the car, testified on behalf of defendant, as follows:
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Appellant assigns as error the action of the trial court in giving and reading to the jury Instruction No. 2. Said instruction reads as follows:
'If you find and believe from the evidence that the breaking of the streetcar window mentioned in the evidence was caused by a rock coming from outside of said car and through said window, and if you further find that in the exercise of the highest degree of care in the operation of said streetcar defendant had no reason to anticipate such occurrence, then plaintiff is not entitled to recover for any injury caused by the breaking of said window, and if you further find that following the breaking of said window the streetcar was brought to a normal stop and not with such suddenness as to endanger the safety of passengers thereon, then plaintiff is not entitled to recover for any injury caused by the stopping of said car.'
Appellant contends that this instruction was not supported by the evidence in that there was no evidence that a rock came through the streetcar window. There is no merit to this contention.
The operator of the streetcar testified that he heard a crash, followed by the sound of falling glass. He also stated that plaintiff told him a rock hit her in the face. He also saw that the window was broken and observed a rock the size of a hen's egg in the aisle alongside the seat occupied by plaintiff. He saw glass on the plaintiff. Mrs. Murray testified she heard a crash, saw the broken window, and observed a rock on the floor. Plaintiff testified that she was hit on the side of the head by glass with sufficient force as to cause her to be rendered almost unconscious and to cause two teeth to be loosened. We believe that from the foregoing facts and circumstances it could be reasonably inferred that a rock from the outside came through said streetcar window.
Facts necessary to sustain a recovery or a defense in a civil action may be established by circumstantial evidence. Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43; Van Brock v. First National Bank in St. Louis, 349 Mo. 425, 161 S.W.2d 258; McCain v. Trenton Gas & Electric Co., 222 Mo.App. 1146, 15 S.W.2d 970; Tueteberg v. St. Louis Public Service Co., Mo.App., 41 S.W.2d 956; Hasenjaeger v. Missouri-Kansas-Texas R. Co., 227 Mo.App. 413, 53 S.W.2d 1083; Barker v. Silverforb, Mo.App., 201 S.W.2d 408; Duley v. Coca-Cola Bottling Co., Mo.App., 232 S.W.2d 801.
It is also urged that the instruction is erroneous because it predicated negligence upon the 'personal' anticipation of the operator of the bus, whereas, under the law, that question must be determined from what a very careful and prudent operator would 'anticipate' under the same or similar circumstances.
In support of her contention appellant cites and relies upon the case of Beahan v. St. Louis Public Service Co., 361 Mo. 807, 237 S.W.2d 105. In that case, plaintiff alighting from a bus, stepped into a hole in the sidewalk and fell. She brought suit for damages. There was a verdict and judgment for defendant, from which plaintiff appealed. The judgment was by the Supreme Court reversed on account of error in an instruction given for defendant.
The instruction in said Beahan case directed a verdict for defendant if its operator 'having seen said defect, would not, in the exercise of the highest degree of care, have considered said defect to be dangerous * * *.' [361 Mo. 807, 237 S.W.2d 106.] (Emphasis ours.) The Court held the instruction bad because it left the question of negligence to the personal judgment of the bus driver, whereas, under the law, that question must be...
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