Heinz v. United Rys. Co. of St. Louis

• Decision Date: 02 November 1909
• Citation: 143 Mo. App. 38,122 S.W. 346
• Parties: HEINZ v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

122 S.W. 346

143 Mo. App. 38

HEINZ v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

November 2, 1909.

1. APPEAL AND ERROR (§ 1002) — REVIEW — QUESTIONS OF FACT.

A verdict on conflicting evidence will not be disturbed on appeal.

2. DAMAGES (§ 216) — INSTRUCTIONS.

An instruction in a personal injury case authorizing a recovery for doctors' fees and loss of time in excess of the amount claimed and proved is erroneous.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Charles J. Heinz against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Boyle & Priest and F. J. Whitelaw, for appellant. Blevins & Jamison, for respondent.

GOODE, J.

This plaintiff was hurt December 5, 1907, in a fall from one of defendant's trolley cars. The exact point where the accident occurred is in dispute, but it was somewhere about the intersection of Hickory street and Jefferson avenue, in the city of St. Louis. Jefferson avenue is a north and south thoroughfare, and Hickory street an east and west one. Where the two streets intersect, there is a jog in Hickory; its intersection with the east line of Jefferson avenue being some 50 feet south of where it opens into Jefferson on the west side of the latter thoroughfare. Plaintiff lived on west Hickory street, but the evidence for him is that he attempted to alight at the northeast corner of east Hickory street and Jefferson avenue, and was just at said spot. Plaintiff and three other men who had been attending a lodge meeting in the southern part of the city boarded a north-bound Jefferson street car at Arsenal street and traveled northward. When they passed Rutger street, which is the first one crossing Jefferson south of east Hickory, plaintiff rang the bell for a stop at east Hickory, and, as the car drew near that crossing, the conductor also rang a bell signaling the motorman to stop. Plaintiff went out of the car through the front door, stepped down to the lower step, the car being at that time still moving, but at the speed of a slow walk, and, just as plaintiff attempted to put his foot on the ground in his descent from the steps, the speed of the car was accelerated by a sudden movement forward as though the motorman had released the air which held the brakes. Plaintiff was thrown to the street, his nose broken, his tongue cut, and he was dazed and otherwise injured.

Testimony for the defense, as given by the motorman and conductor, is that, instead of plaintiff alighting at the intersection of east Hickory and Jefferson, the car had passed east Hickory, and was about halfway between it and west Hickory, and in the act of slowing down to stop at the latter street to allow plaintiff to alight, when he stepped off the car, and fell to the ground. It is apparent the evidence is contradictory as to the cause of the accident. Plaintiff's averments of negligence related to the sudden acceleration of the speed of the car as he was in the act of getting off; and the...