Heidbrink v. United Rys. Co.

• Citation: 133 Mo. App. 40,113 S.W. 223
• Parties: HEIDBRINK v. UNITED RYS. CO.
• Decision Date: 26 May 1908
• Court: Court of Appeal of Missouri (US)

113 S.W. 223

133 Mo. App. 40

HEIDBRINK v. UNITED RYS. CO.

St. Louis Court of Appeals. Missouri.

May 26, 1908.

Rehearing Denied October 20, 1908.

1. JURY (§ 97)—DISQUALIFICATION OF JURORS—BIAS.

In a personal injury action against a street railway, a juror on his voir dire stated that his mother had been struck by one of defendant's cars and that a claim had been presented to defendant, but that it was "not exactly settled satisfactorily"; that the settlement made "would not exactly" influence him against defendant, but he thought it would "almost cause" him to give plaintiff "the benefit of the doubt"; that he thought he could give a fair decision. To the question whether he would lean toward plaintiff on account of the accident to his mother, he answered that if the testimony was about equally balanced he supposed that he would give the benefit of the doubt to plaintiff; and to the question whether he would have a feeling of partiality toward plaintiff, "No, not exactly." Held, that he was disqualified because of bias.

2. TRIAL (§ 252)—INSTRUCTIONS—MATTERS NOT SUPPORTED BY EVIDENCE.

An instruction in a personal injury action to allow any expense necessarily incurred for nursing was improperly given, where there was no evidence that any such expense had been incurred.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action for personal injuries by Lizzie Heidbrink against the United Railways Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Boyle & Priest, for appellant. Thos. D. Cannon, for respondent.

BLAND, P. J.

Olive street runs east and west through the center of the city of St. Louis. Sarah street is in the western part of the city, and runs north and south, crossing Olive street at right angles. In 1906 defendant operated a street railroad over Olive street, and the St. Louis & Suburban Railway Company operated one over Sarah street. The usual place to stop cars running west on Olive street, to receive and discharge passengers, is the west corner of the street crossing. On February 11, 1906, plaintiff, in company with her sister, boarded a westbound Olive street car, at about 10 o'clock p. m., to be carried to Sarah street. She and her sister occupied the back seat in the car. Just before the car reached Sarah street, plaintiff's sister signaled the conductor to stop the car at the Sarah street crossing. The conductor gave the motorman a bell to stop, and the speed of the car was slackened before it reached the railway tracks on Sarah street, and plaintiff arose from her seat and walked out of the door to the rear platform. After reaching the platform she was either thrown off by a lurch of the car, or walked off and fell upon the street. Plaintiff was badly injured, and the action is to recover her damages.

The petition alleges, and plaintiff's evidence tends to show, that plaintiff arose from her seat when the car was entering the Sarah street crossing, walked to the platform, and stopped and stood at the door, holding to the door handle, waiting for the car to reach the corner and stop, to allow her to get off; that as the car crossed the Sarah street tracks it was given a sudden propulsion, from which an unusual jolt and jerk resulted, causing plaintiff to lose her hold on the door handle and to be thrown off the car to the street. The evidence for defendant, coming from passengers standing on the back platform and a bystander on the street, tends to show there was no spurt of speed and no unusual jerking or jolting of the car as it crossed over the Sarah street...