Lawson v. East St. Louis Ry. Co.

• Decision Date: 04 December 1934
• Docket Number: No. 23099.,23099.
• Citation: 76 S.W.2d 454
• Parties: LAWSON v. EAST ST. LOUIS RY. CO.
• Court: Missouri Court of Appeals

76 S.W.2d 454

LAWSON v. EAST ST. LOUIS RY. CO.

No. 23099.

St. Louis Court of Appeals. Missouri.

December 4, 1934.

Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.

"Not to be published in State Reports."

Action by Edward Lawson against the East St. Louis Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Lashly, Lashly & Miller, of St. Louis, for appellant.

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

BENNICK, Commissioner.

This is an action for damages for alleged personal injuries, claimed to have been sustained by plaintiff, Edward Lawson, in a fall from the front step of one of defendant East St. Louis Railway Company's east-bound State street cars, in East St. Louis, Ill., on September 15, 1930. There have been two trials of the case, both before the same judge and in the same division of the circuit court of the city of St. Louis. The first trial resulted in a verdict of the jury for plaintiff for $4,000, with defendant's motion for a new trial thereafter sustained by the court upon the ground that the verdict was against the weight of the evidence. The second trial likewise resulted in a verdict for plaintiff, but for $9,000; and, as a condition to the overruling of defendant's motion for a new trial, the court required of plaintiff a remittitur of $5,000. The remittitur was made, and a new judgment thereupon entered for plaintiff, and against defendant, in the sum of $4,000; and defendant's appeal to this court has followed in the usual course.

Counting upon the relationship of passenger and carrier, plaintiff tried and submitted his case upon the theory that, while he was in the act of alighting from the street car, the same was suddenly, and without warning, started forward by the motorman, causing plaintiff to be thrown from the step down upon the surface of the street and injured.

The answer of defendant was a general denial, the defense actually being, not only that defendant had had no knowledge of any such accident, but that, due to the mechanical equipment of the cars, it could not have occurred in the manner claimed by plaintiff, and further that plaintiff, in any event, had not received the injuries of which he complained.

Plaintiff presents the pathetic figure of a man seventy years of age at the time of the alleged accident, and blind for the last nine or ten years. According to his evidence, he and his wife were the only passengers on the east-bound State street car in question, their destination being Thirtieth street, where they intended to leave the car and make a canvass of the neighborhood, selling toilet articles from house to house. The time was 10 o'clock in the morning, or a little after. As the car neared Thirtieth street, Mrs. Lawson rang the bell, and, after it had come to a stop at the regular stopping place, plaintiff and his wife left their seat and started towards the exit at the front of the car, Mrs. Lawson leading the way, and plaintiff following with his hand upon her shoulder.

Mrs. Lawson left the car first and stood alongside the step waiting to assist her husband to the street. Holding with his left hand to a railing of some sort, plaintiff stepped down upon the step, with his wife holding to his arm to guide and support him. With both feet upon the step, he reached out with his cane to locate the surface of the street, and, while he was in that position, and without any warning having been given, the car was suddenly started forward, causing Mrs. Lawson to lose her hold on plaintiff's arm and him to be thrown forward, falling in the street upon his right side and shoulder, and sustaining the injuries for which he has sued.

The street car kept on moving; the inference from plaintiff's evidence being that the motorman was not apprised of what had occurred. Mrs. Lawson testified that, while she was standing facing the door, waiting to lend assistance to her husband, she happened to glance up at the motorman and noticed that he was looking towards the opposite side of the street.

Plaintiff was assisted to his feet by the persons who were attracted to the scene of the accident, and then, not fully realizing the seriousness of any injuries he may have suffered, he and his wife caught a west-bound car for their home.

From its records defendant identified the four cars that were running on State street on the morning of the alleged accident, and also produced the four motormen who had been in charge of them, who testified, not only that they had had no knowledge of any such accident as plaintiff claimed, but that they had no recollection of ever having seen plaintiff and his wife before. Furthermore, defendant had an abundance of evidence to show that the four cars in question were of a type so constructed that, so long as the exit door was open and the step down, the flow of electrical current was automatically cut off from the controller so that the car could not be started in motion.

As a matter of chief insistence, defendant argues that its requested peremptory instruction in the nature of a demurrer to all the evidence should have been given upon the theory that plaintiff's own evidence was so contrary to the physical facts and surrounding circumstances as not to have supported his right to recover. As supplementary to such point, it suggests likewise that the verdict was against the evidence and the law under the evidence, and that the court erred in not sustaining the motion for a new trial upon either or both of such grounds.

We think this point is clearly unavailing upon appellate review of the case. It is to be noted that defendant's position is, not that plaintiff did not adduce evidence which, if believed, made out a case of actionable negligence, but rather that his evidence was unbelievable because of the improbability of the truth of certain features of it, and because of defendant's own evidence that, in...