Kelly v. Kiel

• Decision Date: 07 June 1938
• Docket Number: 24553
• Citation: 117 S.W.2d 1086
• Parties: KELLY v. KIEL
• Court: Missouri Court of Appeals

117 S.W.2d 1086

KELLY v. KIEL

No. 24553

Court of Appeals of Missouri, St. Louis District

June 7, 1938

B. G Carpenter, T. E. Francis, O. P. Owen, and F. X. Cleary, all of St. Louis, for appellant.

Emmett Golden and Dubinsky & Duggan, all of St. Louis, for respondent.

BECKER Judge. HOSTETTER, P. J., and McCULLEN, J., concur.

OPINION

BECKER Judge.

This is an appeal by defendant below from the judgment in the sum of $ 6,750 rendered against it and in favor of plaintiff, in an action for damages for personal injuries alleged to have been sustained by the plaintiff as a passenger riding on one of defendant's street cars.

The case was tried upon plaintiff's third amended petition which set up several assignments of negligence, upon only one of which was the case submitted to the jury, namely, that the street car was negligently and carelessly permitted to be brought to a stop with a sudden and unusual jerk which caused plaintiff to be thrown from the steps of the car to the street. Other assignments of negligence were that the defendant was guilty in negligently permitting a banana peeling, refuse and debris to remain on the steps of the street car, on which plaintiff was caused to slip and fall into the street; and that the steps of the street car were dark and unlighted.

The testimony adduced on behalf of plaintiff tended to prove that on the evening of April 15, 1933, he was a passenger on an eastbound Hodiamont street car owned, operated, and controlled by defendant; that as the car neared 18th street and Franklin avenue in the city of St. Louis, Missouri, he gave the usual sign of his intention to alight, and walked to the center exit door; that while he was standing at the door the car was brought to a stop with a sudden and unusual jerk causing him to be thrown into the street, causing him injury. As he lay in the street he saw a part of a banana peeling on the lower step of the street car and a part of the banana peeling on the street.

Plaintiff admitted on crossexamination that his deposition had been taken prior to the trial, and that in his deposition he had testified that the street car was standing still at the time he was alighting therefrom; that in describing the accident he had testified that as he stepped onto the lower step he slipped on some foreign substance and fell into the street. Plaintiff further admitted that the testified at the time his deposition was taken, when questioned concerning whether or not the car was brought to a stop with a jerk, that "naturally there is a little jerk of the car," but that did not have anything to do with his fall; that his fall was due to his slipping on some foreign substance on the step. Though on crossexamination plaintiff denied that he had ever been injured before, yet on redirect examination he admitted that he had suffered an injury to his left foot some six months prior to the date he received the injuries for which he sued in the present action, and that for the said prior injury he had been paid compensation.

One of plaintiff's physicians, Dr. Val Parmley, a licensed physician in the state of Arkansas, testified that plaintiff's right ankle joint was fractured in three places, and that the foot was "displaced backwardly"; that at the time he examined plaintiff his ankle had been in a plaster cast for eight weeks; that he performed an open reduction operation on December 28, 1933, to get the fragments and dislocation back in place; that on February 27, 1934, he operated upon plaintiff's ankle to remove a metal screw from the fragments following the healing of the fracture; that at the time of the trial there was a fifty per cent. Limitation of motion with considerable enlargement of the joint and swelling of the tissue; that plaintiff will not be able to walk for any long distance without the use of a cane.

The defendant adduced a number of witnesses, among whom was the operator of defendant's street car, who testified that he did not know that an accident had occurred until after he had completed his trip downtown and returned the car to the car sheds at the end of the line.

The police officer who took plaintiff to the hospital and subsequently made out a police report, identified his said report and after refreshing his memory therefrom, testified that plaintiff had told him at that time that his fall had been caused by his stepping one a banana peeling which was in the street in front of 1800 Franklin avenue.

A witness for defendant testified he was a passenger on the street car and that he had alighted immediately after plaintiff; that the street car made the usual stop, and that plaintiff fell to the second step and then to the street. This witness testified that he saw a banana peeling on the street but did not know whether it was on the step of the car or in the street.

Defendant introduced in evidence plaintiff's first and also plaintiff's second amended petitions in which the sole assignment of negligence was to the effect that as plaintiff proceeded to alight from the street car he stepped "upon the step of said exit of the street car, he was then and there caused to slip upon a banana peeling, refuse or debris which was located and lying upon said step of said street car, and thereby being thrown violently from the said step of the said street far onto the street." Defendant also introduced in evidence a statement which...