Hughes v. Kiel

• Decision Date: 05 January 1937
• Docket Number: No. 23974.,23974.
• Citation: 100 S.W.2d 48
• Parties: HUGHES v. KIEL.
• Court: Missouri Court of Appeals

100 S.W.2d 48

HUGHES v. KIEL.

No. 23974.

St. Louis Court of Appeals. Missouri.

January 5, 1937.

Appeal from St. Louis Circuit Court; Chas. B. Williams, Judge.

"Not to be published in State Reports."

Action by James A. Hughes against Henry W. Kiel, receiver of the St. Louis Public Service Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

T. E. Francis, S. G. Nipper, and Frank X. Cleary, all of St. Louis, for appellant.

Berthold & Chase and Oliver Blackinton, all of St. Louis, for respondent.

BECKER, Judge.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while he was a passenger on one of defendant's street cars. Judgment was rendered for plaintiff in the sum of $1,200, and defendant's appeal to this court has followed in the usual course.

The appeal involves the question of whether plaintiff was improperly permitted to recover upon proof of a cause of action or theory of negligence materially different from that averred in his petition, which was as follows:

"And for his cause of action, plaintiff states that * * * plaintiff was a passenger on one of defendant's Cass avenue street cars, sitting in the round seat at the rear of said street car, and said street car was in violent collision with an automobile, and as a direct result of said collision, plaintiff sustained the serious and permanent injuries hereinafter set forth.

"Plaintiff states the collision between said Cass avenue street car, upon which plaintiff was a passenger, and said automobile was due to the carelessness and negligence of the defendant, his agents and servants, in charge of and operating said Cass avenue street car, and as a direct result of said collision plaintiff sustained the following serious and permanent injuries. * * *"

It will be observed from the above that in stating the cause of action which defendant would be called upon to meet plaintiff distinctly alleged and relied upon the fact of a collision between the street car and an automobile, with the collision attributable to the carelessness and negligence of defendant's employees in charge of the street car, and resulting in the injuries to plaintiff for which he asked to be compensated in damages.

However, in the proof of his case plaintiff testified, not merely casually, but positively and unequivocally, that upon approaching Twenty-third street the eastbound street car upon which he was a passenger, and which had been traveling at a speed of twenty or twenty-five miles an hour, was brought to a very sudden and abrupt stop, causing him to be pitched forward out of his seat in "a kind of a twisting position"; that a fellow passenger who was sitting alongside of him "grabbed hold of" him and prevented him from being thrown to the floor; that as he was returned to his seat his back came in contact with the rear portion of the seat; that he felt pain in his back almost immediately after the sudden stopping of the car; and that it was "shortly" or "just a few seconds" after the car was stopped that the automobile ran into it from the rear.

Of similar import was the evidence given by plaintiff's witness, a fellow passenger, whose testimony was that the street car was stopped "real quick"; that when the car came to the sudden stop, plaintiff was pitched forward out of his seat; that he "grabbed hold of" plaintiff to prevent him from falling to the floor; and that "a second" later, just as he was "pulling him down," there was a "smash at the back of the car" as the automobile ran into it.

What we are emphasizing is that it was made clear from plaintiff's evidence that it was the sudden stopping of the street car, and not the subsequent collision of the automobile with it, that caused plaintiff to be pitched forward out of his seat and injured; and his theory of the case was that even though the substantial portion of his injury may have been produced at the moment his back struck against the seat as his follow passenger pulled him down into it, still it was the fact that he was first pitched forward and then pulled backwards that gave the impetus which made it possible for him to be injured under the conditions detailed in the evidence.

That all this is true was pointedly evidenced by the attitude of plaintiff's own trial counsel, who, in interrogating plaintiff's doctor on direct examination, asked him to "assume that street car is traveling at a rate of speed about 25 miles an hour, and that it comes to a very sudden, abrupt stop, and causes Mr. Hughes to be pitched out of his seat and then back, striking his back against the back portion of the seat, or car; in your opinion, could such a blow cause the injuries or conditions that you found on Mr. Hughes when you first saw him on the 21st of June, 1933?"

Moreover, the doctor testified on cross-examination that in his opinion the injuries he found present in plaintiff could not have been produced from any mere impact at the rear of the car unless "the patient were thrown out of the seat * * * or come back and twist the back * * * because sitting in the seat I don't see how that injury would have been caused."

Indeed, not only was the evidence in support of plaintiff's case adduced upon the theory that...