Hoffman v. Western Union Telegraph Co.

• Decision Date: 08 December 1931
• Docket Number: No. 21894.,21894.
• Citation: 43 S.W.2d 902
• Parties: HOFFMAN v. WESTERN UNION TELEGRAPH CO. et al.
• Court: Missouri Court of Appeals

43 S.W.2d 902

HOFFMAN v. WESTERN UNION TELEGRAPH CO. et al.

No. 21894.

St. Louis Court of Appeals. Missouri.

December 8, 1931.

Appeal from St. Louis Circuit Court; Fred J. Hoffmeister, Judge.

"Not to be officially published."

Action by Della Hoffman against the Western Union Telegraph Company and the St. Louis Public Service Company. From a judgment for the St. Louis Public Service Company and for plaintiff, the Western Union Telegraph Company appeals.

Affirmed.

Jones, Hocker, Sullivan & Angert and Fred W. Perabo, all of St. Louis (Francis R. Stark, of New York City, of counsel), for appellant.

Mason, Goodman & Flynn, of St. Louis, for respondents.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff on January 30, 1929. The defendants at the trial below were Western Union Telegraph Company, the appellant herein, and St. Louis Public Service Company, which owns and operates the system of street railways in the city of St. Louis.

The accident happened at the intersection of Eighth and Olive streets, in the city of St. Louis, which the witnesses described as one of the busiest corners in the city. Eighth street runs north and south, while Olive street runs east and west, the former having a single car track upon it for south-bound cars, and the latter the conventional double tracks for both east-bound and west-bound cars.

At the time in question, the telegraph company was engaged, under a permit issued by the municipal authorities of the city of St. Louis, in the prosecution of some underground conduit work at the point of the accident, which required the removal of the cobblestone pavement in the area bounded by the two rails of the single car track on Eighth street and the inner rails of the two tracks on Olive street. To cover over the opening or excavation in the street which was thus exposed, the telegraph company had taken heavy oak timbers, four inches thick and six to ten inches wide, and had cut them to a length which would fit in between the inner rails of the two tracks on Olive street. In other words, the timbers, when in position, extended in the street from north to south, and lay in between and parallel to the rails of the track on Eighth street. During the daytime the timbers were kept in place between the rails, but at night they were removed, and the work was done while the traffic on both streets was at a minimum.

Plaintiff's injuries were received about 9:30 o'clock in the forenoon. She was a passenger on a south-bound car on Eighth street, and was seated in the front seat to the left, immediately behind the iron grating that separated the section of the car reserved for passengers from that in which the motorman stood. The car had stopped at the north line of Olive street to take on and discharge passengers, and then started forward at the ordinary speed of five or six miles an hour. Just as the rear end of the car was crossing the space between the inner rails of the two tracks on Olive street which the telegraph company had covered with the timbers, the car was brought to a sudden and violent stop, throwing plaintiff forward, and causing her chest to strike against the grating in front of her. Neither the fact that she was injured, nor the severity of her injuries, is questioned on this appeal.

Immediately following the accident, an investigation was made, and it was found that as the front of the car had passed over the timbers, one of them had become loosened, resulting in the end to the north flying up and catching the rear trucks of the car, while the end to the south remained wedged against the ground, or more probably against the north rail of the east-bound car track. Suffice it to say that the damage to the street car was such that it was impossible to remove it from the scene of the accident under its own power.

As to defendant Public Service Company, plaintiff pleaded and relied upon general negligence; but as to defendant Western Union Telegraph Company, she pleaded and relied upon specific negligence in obstructing the street with timbers which it had left upon the track of its codefendant.

The separate answers filed by the two defendants were each in the form of a general denial.

Upon the trial of the issues to a jury, a verdict was returned in favor of defendant St. Louis Public Service Company, but in favor of plaintiff, and against defendant Western Union Telegraph Company, in the sum of $2,000. Judgment was rendered accordingly; and following the overruling of its motion for a new trial, the telegraph company has duly appealed.

But one point is urged...