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

• Decision Date: 24 January 1911
• Citation: 134 S.W. 107,155 Mo. App. 202
• Parties: JEROME v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

134 S.W. 107

155 Mo. A. 202

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

St. Louis Court of Appeals. Missouri.

January 24, 1911.

1. CARRIERS (§ 303)—INJURY TO PASSENGER— SETTING DOWN PASSENGERS.

Where the conductor and motorman had stopped the car to permit a passenger to alight, and knew or were bound to know that she was in the very act of alighting, they should not only hold the car stationary a reasonable length of time for her to alight, but should exercise a high degree of care to ascertain whether she had reached a place of safety before putting the car in motion.

2. EVIDENCE (§ 506)—EXPERT TESTIMONY— PHYSICIANS.

A physician, who has been examined as to both objective and subjective symptoms, may state whether plaintiff will suffer pain from the injury in the future; such testimony not being an invasion of the province of the jury.

3. EVIDENCE (§ 528)—EXPERT TESTIMONY—PHYSICIANS.

A physician, duly qualified as an expert, may as a general rule testify as to the probable results of an injury.

4. EVIDENCE (§ 506) — EXPERT TESTIMONY—PHYSICIANS.

The testimony of a physician that the injury to plaintiff's foot was traumatic was not objectionable, as calling for a matter within the province of the jury, though there was evidence tending to show that the condition of plaintiff's foot resulted from dropsy.

5. EVIDENCE (§ 528) — EXPERT TESTIMONY—PHYSICIANS.

An attending physician, who has examined a wound, can express an opinion whether or not it resulted from a burn or a cut of a knife.

6. EVIDENCE (§ 493)—OPINION EVIDENCE— CAUSE AND EFFECT.

A mother, who has raised several children and has had experience with burns, may express an opinion that a scar appears to have been caused by a burn.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by Lizzie E. Jerome against United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. T. Priest and R. E. Blodgett (Boyle & Priest, of counsel), for appellant. George Safford, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

It appears plaintiff, a lady about 60 years of age, was a passenger on defendant's street car, operated by it on Olive street, in the city of St. Louis. She was seated in the forward portion of the car. Upon approaching Theresa avenue, which was her destination, she gave the signal for the car to stop to permit her to alight. In pursuance of the signal, the car came to a stop at the usual place for discharging and receiving passengers, and because of its crowded condition plaintiff passed out of the front door to alight from the platform there provided for such purpose. The evidence tends to prove that she proceeded with reasonable diligence and exercised ordinary care for her own safety; but, while she was in the very act of alighting, the power was turned on and the car started forward. It is said the conductor, who was on the rear platform, sounded the bell for the motorman to move forward, which signal was complied with, and the car started in motion while plaintiff was about to alight. Because of this fact, she was precipitated upon the ground with great force and received numerous painful and permanent injuries.

Among other things, the court instructed the jury, for plaintiff, that if she was a passenger on the car, and it stopped at Theresa avenue for the purpose of permitting her to alight therefrom, and that she proceeded to alight from the car with reasonable expedition, and the servants and agents of defendant, whose duty it was to control the motion of the car, while she was in the act of so doing, and before she had fully alighted therefrom, without giving her warning to that effect, caused the car to start forward with a sudden jerk, and thereby directly and proximately caused her injury, then the finding should be for plaintiff, provided she was exercising ordinary care at the time. It is argued the instruction is erroneous, in that it omits to require the jury to find, further, that the car was not stopped a reasonable length of time to permit plaintiff to alight. The argument is without merit on the facts of the case; for, though it is true the duty rests upon defendant to stop its car a reasonable length of time for passengers to alight, and the passengers are presumed to act with due diligence in that regard, the doctrine is without influence here, for it appears the car stopped upon plaintiff's signal with the purpose to permit her to alight. In such circumstances, the high degree of care which the law devolves upon the carrier of passengers is not fulfilled unless its servants, before starting the car, see and know that the passenger in the act of alighting has succeeded in doing so in safety, and that he or she is not in such a situation as to be imperiled by the sudden starting of the car. Thompson's Com. on Neg. § 3520; Nelson v. Met. St. R. Co., 113 Mo. App. 702, 88 S. W. 1119; Bell v. Central, etc., R. Co., 125 Mo. App. 660, 103 S. W. 144; Murphy v. Met. St. R. Co., 125 Mo. App. 269, 102 S. W. 64; Hurley v. Met. St. R. Co., 120 Mo. App. 262, 96 S. W. 714. Both the conductor and motorman must have known in this case that plaintiff was then in the very act of alighting from the car; for it is conclusively shown that the car stopped to permit her to do so, and it appears she was under the very eye of the motorman, who was stationed on the front platform, when the car was suddenly started forward by him. In such circumstances, those operating the car should not only hold it stationary a reasonable length of time for the passenger to alight, but should exercise high care as well to the end of ascertaining the fact of the passenger's safety before putting the car in motion to her peril. See Bell v. Central, etc., R. Co., 125 Mo. App. 660, 103 S. W. 144, and authorities supra.

Two physicians, Dr. Simon and Dr. Konzelmann, who had made personal examinations with respect to plaintiff's injuries, qualified as expert witnesses at the trial. After describing plaintiff's condition, etc., each of these professional gentlemen were permitted to express an expert opinion, based solely upon the objective symptoms which they discovered from an examination of plaintiff's injuries, to the effect that she would suffer pain therefrom in the future. From examination made and the objective symptoms discovered, these witnesses said they were able to state whether or not she would suffer pain therefrom in the future. After so stating, the court permitted them to express the opinion, over defendant's objection and exception, that plaintiff would suffer future pain from the injuries said to have been received through defendant's negligence. It is earnestly argued the court erred in so doing, for the reason the expert opinion so given was but the conclusion of the...