Hoffman v. St. Louis Public Service Co.
| Decision Date | 09 March 1953 |
| Docket Number | No. 1,No. 43131,43131,1 |
| Citation | 255 S.W.2d 736 |
| Parties | HOFFMAN v. ST. LOUIS PUBLIC SERVICE CO |
| Court | Missouri Supreme Court |
Mattingly, Boas & Richards, Lloyd E. Boas, St. Louis for appellant.
Mortimer A. Rosecan, Inman, Dyer, Gray & Dreher, Charles E. Gray, Ray T. Dreher, St. Louis, for respondent.
This is an action for personal injuries sustained by plaintiff as she boarded a mortorbus operated by defendant in the City of St. Louis. Following verdict awarding her damages in the sum of $8,000 and judgment rendered in accordance therewith, defendant appealed. Error is predicated upon: (1) the verdict-directing instruction given in behalf of plaintiff, (2) admission of incompetent testimony as to plaintiff's nervous condition, (3) improper and inflammatory statements made by plaintiff's counsel during closing argument, (4) prejudicially unwarranted admonition of defendant's counsel during the trial, (5) improper interrogation of the jurors by the trial court as to whether they could reach a verdict, and (6) gross excessiveness of the judgment.
Certain of the assignments on this appeal require us to state the evidence from plaintiff's viewpoint.
Plaintiff, a single woman, twenty-six years of age when the case was tried in December, 1951, was a bookkeeper and accountant at the Jewish Hospital. Between 5:00 and 5:30 p. m., on May 18, 1950, she and several other prospective passengers were at the southeast corner of the intersection of Ninth Street and Washington Avenue for the purpose of boarding a northbound Cass bus. Plaintiff was the only witness who testified as to the manner in which she was injured. Her testimony was: When the bus arrived, it stopped with its front entrance door from one foot to two feet from the east curbing of Ninth Street. She was the first person to enter. She was carrying a large bundle and a small bundle under her left arm and her money in her right hand. She stepped from the curbing to the street and from the street to the bus. She later described the movement of the bus as a 'terrific jerk'; she had a feeling of going forward and backward.
When she had fallen, her left foot was out in the street in a straight position from where she was sitting on the second step, with her toe touching the street, her right knee was touching her chin and her dress was above her legs, and she was over on her right side. She was so embarrassed and humiliated that she just sat there for a few minutes. Some of the passengers tried to pick her up, but she was in such an awkward position they could not help her. She had a vague recollection of the operator asking her if she was all right, but was so confused she did not remember her answer. She finally got up on her feet and went back into the bus where she stood until a seat was available. She talked to no one on the bus about the occurrence.
The right side of her back and her right knee and ankle pained her and the knee and ankle were bleeding. When she arrived at her destination--a beauty parlor where she had an appointment--the operators removed her stocking and washed and dressed the cuts. She went from the beauty parlor to her home in a taxicab. The operators testified that when she entered the shop she was crying and that they removed her stocking, dressed the cuts and applied an antiseptic to her knee and ankle.
Plaintiff's evidence, corroborated by her physician, Dr. Irvin Kotner, a specialist in obstetrics and gynecology and a staff member of the Jewish Hospital and two others, was that for several years prior to June of 1949 she had suffered from painful and irregular menstruation, caused by a retroverted uterus; that in June of 1949 she had been operated upon for that condition by Dr. Kotner, at which time he found and removed a small follicle cyst on her right ovary, which, Dr. Kotner testified, was a very common thing in women of childbearing age, from fourteen to forty-five years; that post-operative examinations made thereafter revealed that by March of 1950 her ovaries and uterus were back to normal in every respect, her menstruation was regular and normal, and she was free from all pain; and he at that time discharged her as recovered.
Upon arrival at her home from the beauty parlor on the day she was injured (May 18, 1950), plaintiff was suffering pain in the area of her right ovary. She went to bed and the pain in that region became worse. On the following morning she consulted Dr. Kotner at the Jewish Hospital, at which time he taped her back and ankle and bandaged her right knee, gave her a sedative and took her home. On the following Thursday he made an internal pelvic examination and 'packed' her right ovary. She thereafter saw Dr. Kotner about once a week. Her pain grew increasingly worse and menstrual flow became scant, or not at all, and irregular. In November, she was advised by Dr. Kotner that she should undergo an operation for the removal of the ovary, but she was so reluctant to lose it that the operation was postponed until May of 1951 in an effort to relieve the condition by treatment, which was unsuccessful.
At that time, Dr. Kotner, after consulting with Doctors Allen and Meyerhardt, specialists in obstetrics and gynecology, removed it. He found it to be about the size of a large plum and filled with dark brown fluid, old blood. A normal ovary is the size of an unshelled almond. During the course of the operation, he also removed one of her Fallopian tubes which had become adhered to the ovary.
Assuming the facts testified to by plaintiff as to the manner in which she was injured, as propounded in a hypothetical question, Dr. Kotner stated his opinion: 'I feel as a result of that trauma that the patient had a hemorrhage or a rupture of an artery or a vein, or both, in that ovary, with a sudden gushing forth of the blood in that ovary which was the source of that pain and the swelling in that ovary.' He also testified that the removal of one ovary would not render plaintiff sterile, and that her ability to conceive with only one ovary was excellent. The loss of both ovaries would render her sterile.
Defendant denied any knowledge of the occurrence until receipt of a letter from plaintiff's attorney dated May 20, 1950. The operator of bus No. 3188 () denied any recollection of the incident.
Further details of the evidence will be set forth when pertinent to discussion of the various assignments of error.
Instruction No. 1, given at the instance of plaintiff, submitted her case on the merits. After hypothesizing a passenger-carrier relationship, it declared: '* * * and if you further find that while plaintiff was in the act of boarding said bus through its front door the defendant did cause or permit said bus to move and jerk, and if you further find that plaintiff was thereby caused to lose her balance and fall to the steps of said bus, and if you further find that in so causing or permitting said bus to move and jerk the defendant failed to exercise the highest degree of care and was negligent, and if you further find that as a direct and proximate result of such negligence, if any, plaintiff was caused to sustain injuries mentioned in evidence, then your verdict should be in favor of the plaintiff * * *.'
Defendant says, first, that although the petition alleged the bus was caused to move while plaintiff was in the act of boarding it, yet her testimony establishes that she was already on the bus when it moved. It is true that literally she was on the bus when it moved, but she also was in the act of mounting the steps to the bus floor; an act which, due to the necessity of making possible the entrance into the bus by the passengers following her, the operator must have known she would perform before coming into a balanced position in anticipation of the bus starting forward; and, in that sense, plaintiff was in the act of boarding the bus when it moved. (The operator had testified that he made a practice of watching the passengers boarding the bus and could always see their progress as they mounted the steps.) We hold that the instruction was not erroneous in hypothesizing a finding that the bus was caused or permitted to move while plaintiff was in the act of boarding it.
Defendant also says the instruction does not require the jury to find that defendant did or omitted doing any specific act that caused or permitted the bus to move, and that plaintiff testified (and so she did) that she did not know what caused it to move; and that she, therefore, failed to prove the specific cause of her injury. The instruction expressly hypothesized a finding that the movement and jerk of the bus was caused or permitted by defendant, and defendant does not question the sufficiency of the evidence to warrant such a finding. The law is clear that any movement of the bus by defendant under the circumstances testified to by plaintiff in and of itself constituted negligence. 'In the instance of persons boarding or alighting from a carrier's conveyance, any movement of the vehicle before the passenger has had a reasonable opportunity to reach a place of safety therein or to alight is negligence, rendering the carrier liable for the resulting injuries.' 10 Am.Jur., Carriers, Sec. 1432, p. 253. See also 13 C.J.S., Carriers, Sec. 733 h page 1385; Benjamin v. Metropolitan St. R. Co., 245 Mo. 598, 608, 609, 151 S.W. 91; Hayward v. People's Motorbus Co., Mo.App., 1...
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