Hurley v. Missouri Pacific Transp. Co.

• Decision Date: 07 February 1933
• Docket Number: No. 22141.,22141.
• Citation: 56 S.W.2d 620
• Parties: HURLEY v. MISSOURI PACIFIC TRANSP. CO.
• Court: Missouri Court of Appeals

56 S.W.2d 620

HURLEY v. MISSOURI PACIFIC TRANSP. CO.

No. 22141.

St. Louis Court of Appeals. Missouri.

February 7, 1933.

Rehearing Denied February 21, 1933.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

"Not to be published in State Reports."

Action by Lillie Hurley against the Missouri Pacific Transportation Company. Judgment for the plaintiff, and the defendant appeals.

Reversed, and the cause remanded for a new trial.

G. F. Johnson and J. H. Linton, both of St. Louis, and Clyde Williams, of Hillsboro, for appellant.

W. R. Carver and Terry & Terry, all of Festus, for respondent.

McCULLEN, J.

This is an action for damages for personal injuries sustained by plaintiff, alleged to have been caused by the negligence of defendant. There was a trial before the court and a jury, which resulted in a verdict and judgment for plaintiff in the sum of $1,500. Defendant has brought the case here by appeal.

The petition alleges that defendant was a common carrier of passengers for hire, and that on or about the 15th day of June, 1929, plaintiff was a passenger on one of the motorbusses of defendant. The negligence of defendant is alleged in the following language: "While said motorbus was upon Russell Avenue between Twelfth and Thirteenth Streets, in the City of St. Louis, Missouri, defendant negligently permitted the said motorbus of defendant to be struck and collided with, with great force, by some heavy obstacle or vehicle, the kind and character of which is unknown to this plaintiff."

The petition further alleges that as a direct result of the collision she was thrown from her seat and caused to strike the seats and floor of the motorbus and injured. The injuries sustained by plaintiff are then set forth in the petition, followed by an allegation that "The injuries sustained as aforesaid were the direct result of the negligence of defendant."

Defendant's answer was a general denial, coupled with allegations not necessary to be noticed here, because defendant offered no testimony in the case. The reply was in the usual form.

Plaintiff, in person, testified that she paid her fare from the city of St. Louis, to Festus, Mo.; that she got on defendant's motorbus at the Marquette Hotel, in St. Louis, at about 11:30 p. m. on June 15, 1929; that she occupied a seat directly behind the driver on the left-hand side of the bus next to a window; that, when the motorbus had reached a point on Russell boulevard, a short distance west of Twelfth street, in the city of St. Louis, some time between 11:30 p. m. and 12 midnight, some one advised the driver that his bus had no tail light; that he stopped the bus to investigate this condition; that when he came back he said there was no tail light; that the driver then got into the bus and tried to start it, but that it did not start; that the driver then left the bus, saying he was going to get another bus; that one of the passengers suggested that the bus be moved back, which was done. When asked at this point whether she knew anything about the condition of the bus, plaintiff answered, "We were left standing there in the dark," and further stated that there were no lights on the bus. She further testified that the driver "Went off and left the bus standing there with the lights out"; that she sat still in her seat and was suddenly thrown forward over the driver's seat; that she did not know anything more until some woman came to her. She then described her injuries, how she was taken to the City Hospital, thence back to the scene of the accident, and later to her home in Festus.

Derwood Holt, plaintiff's nephew, testified, as a witness for plaintiff, that he was traveling with plaintiff on the same bus; that when the bus was stopped on Russell boulevard it was headed west on the right side of the boulevard, about one and a half to two feet from the curb and about sixty yards west of Twelfth street; that, after stopping to investigate the condition of the tail light, the driver tried to start the bus, but it would not start; that the bus was moved back some ten to twenty feet and was finally parked perhaps a little closer to the curb and near an electric street light, when the driver left it to go for another bus; that he and Andrew Sewald, a fellow passenger, in company with the driver, walked some distance to a restaurant, where they waited for the driver, who went to obtain a relief bus; that the driver called for them on his return with the relief bus and took them back to the disabled bus; that, as they walked along the street there, he could see the disabled bus; that upon his return he noticed some marks on the left-hand side of the disabled bus indicating that it had been hit; that the spare tire on the left side of the bus had been torn loose, and that the left side of the bus, about midway several feet back of the driver's seat, was dented; that, when he and the driver and Sewald left the bus on Russell boulevard, there were no lights burning in it and that there was no tail light; that upon their return with the relief bus he saw a Rickenbacker automobile nearby, the front of which was all bent; that the wheels were "wrecked," and that it looked like the frame was bent; that on the way home he discussed the accident with his aunt (plaintiff); and that she told him she "thought" it was an automobile which struck the bus. He further testified that he could tell from the damage which he observed that the automobile which struck the bus came from behind and scraped along from the rear of the bus toward the front; that in his opinion the automobile was being driven in the same direction as the bus.

Andrew Sewald, who also was a passenger on the bus in question, testified as a witness for plaintiff, and told substantially the same story as that related by witness Holt.

As to the position of the bus and the condition of the lights, he testified that, when he went with the driver to get a relief bus, the driver left no one there to watch the bus or to warn vehicles; that he did not see any danger light burning; that the bus was left standing west of Twelfth street in Russell boulevard about one-quarter to one-half way of the middle of the block; that, upon his return later with the driver and witness Holt, the bus in question was wrecked along the left side from the middle part to the front fender. This witness stated that he saw an automobile at the scene of the accident upon his return, but did not examine it and did not see the driver thereof.

Emanuel Roth, introduced by plaintiff as a witness, testified that he was a passenger on the motorbus in question; that he was lying in the back end of the bus asleep, that the crash awoke him; that the motorbus was struck by a Rickenbacker sedan; that he did not recall whether or not the lights inside the bus were burning; that the bus was parked on the right-hand side of the street between Twelfth and Thirteenth streets on Russell boulevard; that it was "right close to the curb, it might not have been exactly against it." He testified that he had no difficulty in seeing what took place in the bus at the time of the crash; that the bus was stationary when the crash occurred and had been there not quite an hour. This witness estimated half the length of the bus to be about ten feet.

Upon the testimony of the above-named witnesses and testimony as to her injuries by two physicians, plaintiff rested her case.

At the close of plaintiff's case, defendant requested the court to give a peremptory instruction in the nature of a demurrer to the evidence,...