Lammert v. Wells

• Decision Date: 02 March 1926
• Docket Number: No. 19307.,19307.
• Citation: 282 S.W. 487
• Parties: LAMMERT v. WELLS.
• Court: Missouri Court of Appeals

282 S.W. 487

LAMMERT v.WELLS.

No. 19307.

St. Louis Court of Appeals. Missouri.

March 2, 1926.

Rehearing Denied April 6, 1926.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Action by Charles L. Lammert against Rolla Wells, receiver of the United Railways Company of St. Louis.Judgment for plaintiff, and defendant appeals.Affirmed.

T. E. Francis, W. H. Woodward, and E. C. Adkins, all of St. Louis, for appellant.

E. E. Wayman, of.St. Louis, for respondent.

BECKER, J.

This suit was instituted by plaintiff to recover of the defendant damages for loss of his wife's services, society, and companionship and the expenses incurred by him by reason of the injuries alleged to have been sustained by her by being thrown from one of defendant's street cars in St. Louis on the morning of November 3, 1923.A judgment for $4,100 resulted in favor of plaintiff, and defendant appeals.

Plaintiff's petition assigns as negligence that the car on which plaintiff's wife was a passenger was stopped at the southwest corner of Seventh and Locust streets for the purpose of allowing passengers to alight, and that while it was so stopped, and while plaintiff's wife was in the act of alighting from said car, and before she had reasonable opportunity to so alight, "the agents or servants of defendant in charge of and operating said car as aforesaid carelessly and negligently caused and permitted said car to start," thereby throwing plaintiff's wife with great force and violence from the platform and step of said car onto the street, causing her injury.The petition further states that the "injuries * * * were directly caused by the negligence of the defendant, his agents or servants in, as aforesaid, negligently starting said street car" before plaintiff's wife had fully alighted therefrom.

The answer was a general denial.

As to the manner in which plaintiff's wife met with her injury, the wife herself testified that —

The car had come to a stop, and several passengers had gotten off the car immediately ahead of her, when, as she was stepping off the car, and "I was about to alight from the car, stepping from the platform where the motorman stands down to the step, and as I was about to step, the car gave a jerk, and I struck my head, and this is all I remember.

"Q.This happened as you were stepping down from the platform to the step?A.Yes, sir.

"Q.Tellthe jury whether or not, at the time you stepped from the platform onto the step, the car was standing still or moving?A.It was standing still. * * *"

Further reference to the manner in which plaintiff's wife met with her alleged injuries appears in the said wife's cross-examination.We quote it as follows:

"Q.Now, you say you started to get off this car and you say it jerked; is that right?A.Yes, sir.

"Q.Did it jerk forwards or backwards?A.I don't know.

"Q.Don't know whether the car moved backwards or forwards or sidewise?A.No, sir.

"Q.How do you know it jerked then?A.Well; I know that is what threw me. * * *

"Q.Do you know there was a jerk?A.Yes, sir.

"Q.Did it jerk forwards or backwards?A.I don't know.

"Q.But you say it was standing still when you started to get off?A.Yes, sir.

"Q.And you don't know whether it moved forwards or backwards?A.No, sir. * * *

"Q.Now, you say this car jerked.Suppose you just describe that jerk to us.A.Well; I was stepping from the platform down to the step, and I just felt it jerk.I couldn't explain it any more clear than that. * * *

"Q.Well; have you ever been on street cars when, for instance, some very heavy man went down on the step suddenly, and you felt the car sway from side to side a little bit?A.No, sir.

"Q.Was it that kind of a movement that this car made?A.I couldn't say, because I never felt a movement like that. " * * *

"Q.Youdidn't see or feel the car moving, did you?A.I felt it jerk.

"Q.But did you feel it move forward away from you as you stepped down onto this step, I or did you feel it start up after you left?A.No, sir.

"Q.Didn't feel that at all?A.No, sir."

What we have quoted above is all the testimony bearing upon the manner in which plaintiff's wife met with her injury.At the close of plaintiff's case the court overruled defendant's demurrer.Defendant stood upon its demurrer, and the court at the request of plaintiff then gave an' instruction which, among other things therein hypothesized, predicated a recovery for plaintiff if the jury found that "the servant or agent of the defendant in charge of or operating said car caused and permitted said car to start," and by reason thereof plaintiff's wife was thrown from the platform and step of said car to the paved street, and that so starting the car was negligence.

It is contended on behalf of appellant that defendant's demurrer, filed by it at the close of plaintiff's case, should have been given by the court because there was a total failure on plaintiff's part to prove the specific assignment of negligence alleged in his petition.The point is without merit.The charge of negligence set out in plaintiff's petition pleads general negligence, and, having done so, he may rely upon presumptive negligence, under the rule of res ipsa loquitur, to make out his case.

The negligence charged in plaintiff's petition is that the agent or servant in charge of defendant's car "carelessly and negligently caused and permitted said car to start," but it is not alleged what act on the part of the defendant's employees caused the car to start.In other words, the petition does not charge the specific act of negligence on the part of defendant which caused the plaintiff's wife to be thrown from the car.That plaintiff thus pleads general negligence is due to the fact that his wife had absolutely no knowledge of the manner in which she was caused to fall from the car other than that as she was in the act of alighting, and at a time when the car was standing still it gave a sudden jerk, which threw her to the street.

It cannot be ruled that plaintiff, by the allegations of his petition, is shown to be sufficiently advised of the exact negligent acts causing or contributing to his wife's injury as to plead them specifically, and for that reason, in this case, the doctrine of res ipsa loquitur, ex necessitate, must apply.

As was said in the recent case of Porter v. St. Joseph Ry., Light, Heat & Power Co.(Mo. Sup.)277 S. W. 914, loc. cit. 915:

"It is scarcely necessary, in view of the frequency...