Larkin v. Wells
| Decision Date | 09 January 1929 |
| Docket Number | No. 20448.,20448. |
| Parties | LARKIN v. WELLS. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.
"Not to be officially published."
Action by Ida M. Larkin against Rolla Wells, receiver of United Railways Company of St. Louis. Verdict for defendant, and, from an order granting a new trial, defendant appeals. Affirmed, and cause remanded.
T. E. Francis and B. G. Carpenter, both of St. Louis, for appellant.
Hyman G. Stein and Earl M. Pirkey, both of St. Louis, for respondent.
This is an action for damages for personal injuries, alleged to have been received by plaintiff while a passenger on one of defendant's street cars, on April 12, 1919. The verdict of the jury was for defendant; but, subsequently, plaintiff's motion for a new trial was sustained by the court upon the ground of error in the exclusion of evidence, from which order defendant has appealed.
In her petition, plaintiff counted upon negligence of defendant in bringing the street car to a sudden and unusual stop, whereby she was caused to be struck by objects in the car, and to sustain painful and severe injuries. The answer filed by defendant was in the form of a general denial.
The evidence adduced at the trial below presented a direct issue of fact to the jury in regard to whether or not plaintiff was injured on any street car in the manner or at the time and place alleged.
The testimony on her behalf tended to show that, shortly after 4:30 o'clock in the afternoon of the day in question, she boarded a westbound Park avenue car at the regular stopping place on the east side of Grand avenue, and that, as she did so, she took notice of the appearance of the motorman, and observed that the car bore a card indicating "Run No. 15." The car started forward before she had an opportunity to take her seat, and shortly thereafter came to a sudden, abrupt, and unusual stop, the reason for which was unexplained, causing her to be thrown against the rod extending across the top of the seat immediately in front of her.
Although she experienced pain in her abdomen at the time, she made no report of the occurrence to the car crew, but continued onward to her destination. Later in the evening, she called her physician, Dr. A. L. Hertel, and remained under his care at her home for several days, when she was taken to St. Mary's Hospital, where she suffered a miscarriage. Dr. Hertel testified that there were no marks or bruises upon her body, and that no complaint was made to him about the accident in the car until after the time of delivery in the hospital. He admitted, however, that the alleged experience on the car would have been sufficient to have produced the miscarriage, and the condition he found, and that he found nothing present of a pathological nature, other than the injury, that would have accounted for it.
After plaintiff returned home from the hospital, she went to the terminus of the Park avenue line, and sought out the motorman, Peter J. Wynn by name, who was alleged to have been in charge of the car on which she was injured. She again identified him in the courtroom during the progress of the trial.
For the defendant there was evidence, taken in part from the records of the company, that Motorman Wynn had not at any time been on Run No. 15, and that on the day in question he was in fact on Run No. 22, which passed the scene of the accident some time later than the hour fixed by plaintiff as the time of the happening of the accident. Both Wynn and the conductor positively denied knowledge of the occurrence of any mishap on their car, as did also the motorman who had actually been in charge of Run No. 15.
The controversy between the parties on this appeal grows out of the cross-examination of plaintiff, in the course of which it was brought out that she had testified in her deposition to the effect that she had never had a prior claim against the company, whereas it had subsequently developed that some years before she had suffered a slight injury while riding on one of the Crève Cœur cars. In fairness to plaintiff it should be stated, however, that, before signing her deposition, she made a notation regarding the former accident on the margin of the page on which her denial of any prior claim appeared. On redirect examination, plaintiff's counsel elicited the testimony that she had made her complaint on the first...
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