Heggeman v. St. Louis Public Service Co.
| Decision Date | 17 February 1953 |
| Docket Number | No. 28566,28566 |
| Citation | 255 S.W.2d 99 |
| Parties | HEGGEMAN v. ST. LOUIS PUBLIC SERVICE CO. |
| Court | Missouri Court of Appeals |
Carroll J. Donohue, H. Jackson Daniel and Salkey & Jones, St. Louis, for appellant.
Gragg & Aubuchon, St. Louis, Michael J. Aubuchon and William R. Schneider, St. Louis, for respondent.
This is an action by Agnes Heggeman, as plaintiff, against the defendant, St. Louis Public Service Company, to recover damages for personal injuries alleged by plaintiff to have been sustained on August 10, 1951, while she was a passenger on one of defendant's motor busses. The trial below resulted in a verdict and judgment for defendant. Thereafter, the court sustained plaintiff's motion for new trial and, from this action of the court, defendant has appealed.
Plaintiff sought recovery under the res ipsa loquitur doctrine. After formal allegations and averments that plaintiff was a passenger on defendant's westbound Lindell bus, it was alleged that when said bus was near the intersection of Lindell and Whittier Streets, 'said bus gave a sudden, unusual and violent jerk, jar and jolt, throwing plaintiff in, about and around in said bus, all as a direct and proximate result of the negligence and carelessness of the defendant * * * as a direct result of which plaintiff was seriously and permanently injured.'
By its answer, defendant admitted its corporate existence; that it was engaged in the business of transportation of passengers for hire; and that in furtherance of said business, owned and operated a fleet of motor busses known as the Lindell line which was operated eastwardly and westwardly on Lindell Boulevard in the City of St. Louis. After said admissions, defendant, by said answer, denied generally the allegations of plaintiff's petition hereinbefore mentioned, and denied the averments of the petition with respect to the plaintiff having sustained injuries.
Plaintiff testified that she boarded defendant's westbound Lindell bus at the northeast corner of the intersection of Seventh and Locust Streets. She was on her way home at the time and intended to leave the bus at Whittier and Lindell. Whittier Street runs north and south and is one short block west of Sarah Street. On the occasion in question, the bus was stopped by its operator at Sarah Street and, as it thereafter was caused to start forward, plaintiff arose, intending to alight at Whittier Street, the next intersection. As plaintiff arose, the bus gave a sudden jerk which threw plaintiff to the floor. Plaintiff testified that the jerk was,
Plaintiff thereafter alighted from the bus at Whittier Street. She stated that as she was getting off, the bus operator inquired of her, 'Did you hurt yourself?' and that she replied: 'Well, I don't know whether I did or not.' She stated that the bus driver did not take her name and that she did not secure the bus driver's badge number. She stated: 'I was so embarrassed when I fell in front of those people that I walked out of there.' She stated, however, that she observed the number of the bus, but did not write it down until she got home. She had forgotten the number of the bus at the trial, and was unable to produce the paper on which she had written it.
According to plaintiff's testimony on direct examination, the alleged accident occurred between 2:30 and 3:00 p. m. On cross-examination, plaintiff stated that she had testified in a deposition that the incident occurred about 2:15 in the afternoon, and that said testimony was correct. Plaintiff arrived home about three minutes after leaving the bus. About four o'clock that same day plaintiff called the office of the St. Louis Public Service Company on the telephone and talked to Subsequently, a claim adjuster called on her. She gave a statement to the adjuster, but did not sign it.
The day following the accident plaintiff consulted Dr. Martin W. Davis. She stated that before going to the doctor's office she experienced considerable pain in the lower part of her back, and in the back of her head. She stated that Dr. Davis took an X-ray of the lower part of her body, and told her he would give her heat treatments. She further testified that she saw Dr. Davis about eighteen times and that When asked how she felt at the present time, plaintiff replied:
Plaintiff was seventy-four years of age at the time of the trial. She further testified:
Dr. Davis testified that he first saw plaintiff on August 11, 1951. He stated that In response to a hypothetical question, the witness testified that there was a causal connection between the accident and the injury to plaintiff's coccyx.
On cross-examination, Dr. Davis testified that there were no objective symptoms of injury; that tenderness of the coccyx was revealed by the plaintiff's complaint on applying pressure to the coccyx. The doctor could seen no injury, and the X-rays revealed none.
Edward J. Barks testified on behalf of defendant that he was a schedule maker in the employ of defendant. He stated that the company's trip cards indicated that busses westbound on Lindell Boulevard would arrive at Sarah Street on the date of the alleged incident at 2:05, 2:07, 2:13, 2:20 and 2:25 p. m., respectively. The trip cards for the busses involved did not reveal that any unusual incidents had occurred at the time and place in question, and did not reveal that busses were late at any stage of their trip.
William E. Williamson testified on behalf of defendant that he was the assistant general superintendent of automotive equipment for defendant and was in charge of maintaining and caring for all busses in operation. He stated that bus No. 3252 was one of a hundred purchased in 1947 and was equipped with a Diesel engine and a hydraulic transmission, having no shift lever and no clutch pedal; that these busses cannot be started with a jerk by jamming down on the accelerator; that these busses have a rear wheel drive and start in motion by the rear wheels moving; that power is transmitted from the engine to the rear wheels through oil, and there is no mechanical attachment between the power plant and the blades, hence jamming down on the accelerator will not start the bus with a jerk; that busses 3422, 3437, 3273, 3255 and 3438 are all equipped with this hydraulic equipment.
Defendant placed on the witness stand the drivers of all westbound Lindell busses which were scheduled to cross Sarah Street between 2:05 and 2:25 p. m. on the day in question. Each of said witnesses testified that on that particular day nothing unusual occurred, and that they were not approached by an elderly lady complaining of having fallen.
Dr. John Patrick Murphy testified on behalf of defendant that he examined plaintiff during November of 1951; that plaintiff told him she had fallen in a bus during August and had injured her tailbone, and that her tailbone continued to hurt her when she sat on it for any length of time. At the time of Dr. Murphy's examination plaintiff had no complaints except with respect to the area over the tailbone. Dr. Murphy's examination revealed no injury or difficulties on plaintiff's part, and he stated that the tailbone was freely movable.
Plaintiff requested, and the court gave, an instruction submitting the case to the jury under the res ipsa loquitur theory. For the defendant, the court gave an instruction directing a verdict for defendant in the event the jury found that the bus did not jerk, jar and jolt in a violent, unusual and extraordinary manner.
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