Leavitt v. St. Louis Public Service Co.

• Decision Date: 15 November 1960
• Docket Number: No. 30506,30506
• Citation: 340 S.W.2d 131
• Parties: Regina LEAVITT, Plaintiff (Respondent), v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant (Appellant).
• Court: Missouri Court of Appeals

Page 131

340 S.W.2d 131

Regina LEAVITT, Plaintiff (Respondent), v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant

(Appellant).

No. 30506.

St. Louis Court of Appeals, Missouri.

Nov. 15, 1960.

Frank B. Green, William Corrigan, St. Louis, for defendant-appellant.

Robert E. Staed, St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

Plaintiff Regina Leavitt brought this action for damages for personal injuries claimed to have occurred when the rear doors of defendant's motorbus, on which she was a passenger, were closed on her as she was in the act of alighting, causing her to fall to the street. Verdict and judgment was for $7,000 and defendant appealed.

Defendant attacks the judgment on numerous grounds: (1) that plaintiff's testimony as to the manner in which the accident occurred was contrary to physical possibility, and therefore should not have been accepted as substantial evidence, entitling her to go to the jury; (2) that prejudicial error was committed in giving plaintiff's instruction number one; (3) that the trial court erred in overruling defendant's challenges for cause to two veniremen; (4) that its motion for a mistrial should have been sustained when plaintiff injected the subject of insurance into the case; (5) that there was no evidence that plaintiff had sustained any permanent injury, and hence that plaintiff's instruction on damages was prejudicially erroneous in submitting that element of damage; and (6) that the verdict and judgment is excessive. These challenges will be considered seriatim.

A consideration of the first assignment requires a statement of plaintiff's testimony. Plaintiff was a married woman, 57 years of age on the day of the accident. On the morning of March 21, 1958, on her way to work, she boarded one of defendant's Southside Express motorbuses at a stop a few doors from her home, paid her fare, and took a seat near the operator. When the bus neared the stop at which she intended to alight, at Twelfth and Clark in St. Louis, she signalled the operator and walked to the rear exit doors, located near the center of the bus, on the right side. The bus was stopped at an angle from the curb, the rear end being farther away than the front end, leaving a space of about two or three feet between the rear doors and the curb. One other passenger, a young woman, preceded plaintiff, and alighted by jumping from the bottom step to the curb.

Plaintiff stated that she stepped from the floor of the bus to the bottom step, or stairwell, held on to a bar or the seat, which was inside the bus, with her right hand, and paused to consider whether to step down to the street, or to jump to the curb. She decided to follow the example of the young woman who had preceded her, by jumping to the curb. Still holding on with her right hand, she was facing mostly forward, but a little to her right, or to the south. She started to step forward, with her left leg extended in the air. At that instant she felt the doors close on her, hitting her right arm and her right foot. Startled, she released her grip on the bar, was thrown off balance, and fell prone to the street, with her head to the south.

Defendant's evidence was that the rear doorway of the bus was about 22 inches wide. The aperture was enclosed by two folding doors, each of which had a two inch piece of rubber on its leading edge, where they met when closed. Inside of the rubber was an electric cable, connected to a switch, so designed and constructed that if the operator closed the doors on a person or object, the doors would automatically open as soon as they made contact. It was stated by one of defendant's witnesses that the pressure felt by a person upon whom the doors closed would not be over three or four pounds. It was also stated orally, and corroborated by motion pictures which the defendant exhibited at the hearing of the appeal, that the rear doors closed across the outer edge of the bottom step of the bus, and flush with the side of the bus.

From this, defendant argues that if the plaintiff's right foot was on the bottom step of the bus, and only her left foot extended beyond the outer edge of the bottom step, it would have been physically impossible for the doors to have come in contact with plaintiff's right arm and right foot as they closed. The word only is the key word in its argument. Defendant views the evidence as though plaintiff moved in a mechanical fashion, with a pause or hesitation after raising her left foot. However, it is apparent from a careful review of plaintiff's testimony that in addition to raising and extending her left foot, she was in the process of stepping or jumping from the bus to the curb. There is no testimony in the record as to the depth of the bottom step, but it was apparent in the motion pictures shown us that it is, and of necessity must be, rather shallow. It was also apparent from such pictures that if a passenger stood on the bottom step, holding on to the bar with his right hand, only a slight forward tilt of his body was required to bring it between the doors as they closed. Plaintiff was unshakeable in her testimony that the doors hit her right arm, between the elbow and the shoulder, and her right foot.

Viewing the evidence in the light most favorable to the plaintiff, there was sufficient substantial evidence from which the jury could find that the doors struck plaintiff's right arm and right foot as she was in the act of jumping to the curb. Certainly the plaintiff's testimony was not so clearly contrary to physical facts or laws as to justify us in declaring as a matter of law, as in Lohmann v. Wabash R. Co., 364 Mo. 910, 269 S.W.2d 885, that it should be disregarded. Courts are reluctant to say that declared facts are manifestly impossible or untrue, Doyle v. St. Louis Merchants' Bridge Terminal R. Co., 326 Mo. 425, 31 S.W.2d 1010, and should not indulge in arbitrary deductions from physical laws and facts except when they appear to be so clear and unrefutable that no room is left for the entertainment, by reasonable minds, of any other conclusion. Garrison v. Ryno, Mo., 328 S.W.2d 557; Lansford v. Southwest Lime Co., Mo., 266 S.W.2d 564. It should be added that the testimony of Richard Huntsberger, the only witness called by either party who saw what transpired, fully corroborated plaintiff's version of the manner in which the doors struck plaintiff.

Turning to defendant's second assignment, plaintiff's instruction number one informed the jury, in part, that if it found from the evidence that plaintiff became a passenger on defendant's bus which stopped to discharge her and other passengers, '* * * and that as she was attempting to alight from the exit doors on the right side of the bus, the exit doors closed on her, causing her to fall to the street, and be injured, if you so find, then you are instructed that such facts, (if you find them to be true,) * * *.' Defendant complains that in the quoted part of the instruction a controverted fact was assumed, namely, that the closing of the doors caused plaintiff to fall. We find no merit in this contention. The instruction is prefaced by the phrase '* * * if you find from the evidence * * *' and then recites the facts to be found, immediately followed by the cautionary phrase, 'if you so find' as well as the further phrase requiring the jury to find such facts to be true. In our judgment the instruction assumed nothing, and plainly told the jury that it must find, as a prerequisite to a verdict for plaintiff, that it was the closing of the doors on plaintiff which caused her to fall. Bidleman v. Morrison Motor Freight, Mo.App., 273 S.W.2d 745. The cases cited in support of defendant's argument, while supporting the rule that the assumption of a material controverted fact in a verdict directing instruction constitutes reversible error, are clearly distinguishable from the present case.

Defendant's third assignment relates to the overruling by the court of defendant's challenges for cause of two veniremen. The first, named Fritschie, had been struck by an automobile in May, 1959 (the trial started on October 13, 1959), and had employed an attorney to prosecute his claim, but no suit had been filed. The second, named Wischmeyer, had been involved in an automobile accident which had occurred on June 8, 1959, had brought suit for the personal injuries he sustained therefrom, and stated that he imagined he was being 'cross-sued.' The instant defendant was not involved in either Fritschie's claim or Wischmeyer's suit. Both veniremen were positive in their testimony that the matters in which they were involved would not affect or influence them in any way, and that they could give both parties a fair and impartial trial.

Clearly, the veniremen were not disqualified on any statutory grounds, Section 494.190 RSMo 1949, V.A.M.S. That fact, however, is not conclusive, for the enumeration of certain grounds in the statute does not preclude the court from removing a prospective juror for other grounds of incompetency. Kendall v. Prudential Life Insurance Co. of America, Mo., 327 S.W.2d 174; Murphy v. Cole, 338 Mo. 13, 88 S.W.2d 1023, 103 A.L.R. 505. And, where a challenge for cause has been sustained because the pecuniary interest of the juror, or his business or other relationship to one of the parties, such action has been upheld on appeal. The exercise by a trial court of its discretion in that regard should be encouraged. For with '* * * the world absolutely filled with competent, unbiased, and unprejudiced jurors, * * *.' State v. Mace, 262 Mo. 143, 155, 170 S.W. 1105, 1109, it would be prudent to resolve a substantial doubt as to a venireman's competency against him, Moss v. Mindlin's, Inc., Mo., 301 S.W.2d 761, so as to excuse any juror whose sitting is reasonably liable to fill either party with an apprehension of unfairness. Glasgow v. Metropolitan Street Railway Co., 191 Mo. 347, 89 S.W. 915.

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