Lester v. Wells

• Decision Date: 10 July 1923
• Docket Number: No. 17714.,17714.
• Citation: 253 S.W. 387
• Parties: LESTER v. WELLS.
• Court: Missouri Court of Appeals

253 S.W. 387

LESTER v. WELLS.

No. 17714.

St. Louis Court of Appeals. Missouri.

July 10, 1923.

Rehearing Denied July 18, 1923.

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

"Not to be officially published."

Action by Maude L. Lester, by her next friend, Vice Lester, against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded for retrial.

C. W. Bates, T. E. Francis, Alva W. Hurt, and John F. Evans, all of St. Louis, for appellant.

L. G. Peery, of St. Louis, for respondent.

DAVIS, C.

This cause was commenced in the circuit court of the city of St. Louis, in behalf of plaintiff, a minor, by her next friend, for personal injuries alleged to have been sustained on October 15, 1920, while alighting from one of defendant's street cars.

The cause was tried before the court and a jury upon plaintiff's evidence alone; defendant refusing to offer any evidence, unless the cross-examination of plaintiff's witnesses could be so considered, or any instructions, saving the one in the nature of a demurrer to the evidence. The jury's verdict. was for plaintiff for $3,000, the court subsequently entering judgment thereon, from which defendant appeals.,

Defendant (appellant) specifies two assignments of error only. The assignments are in substance, as follows:

First. The court erred in refusing to give defendant's offered instruction in the nature of a demurrer to the evidence, for that there was no evidence or, proof that the street car in question was owned or operated by defendant.

Second. The verdict is excessive, and is the result of passion and prejudice on the part of the jury.

The petition charges in part:

"That defendant was * * * the duly qualified and acting receiver of the United Railways Company of St. Louis, * * * and at all times hereinafter mentioned engaged in operating a line of street cars in the city of St. Louis, as a common carrier of persons for hire, and more particularly a line of street cars known as the Manchester line * * * in said city.

"Plaintiff says that on the 15th day of October, 1920, she was lawfully riding as a passenger on one of defendant's cars known as the Manchester line. * * *"

Defendant's answer to the petition is as follows:

"In the above-entitled cause comes now defendant, Rolla Wells, receiver of United Railways Company of St. Louis, and admits that on the 12th day of April, 1919, he was duly and regularly appointed receiver of the United Railways Company of St. Louis; and that he is now, and ever since said date, has been, in charge of the property of said United Railways Company of St. Louis.

"And defendant, for his answer to plaintiff's petition filed herein, denies each and every allegation therein contained."

Collating the facts with defendant's first assignment of error in view, we find them, in substance, as follows: Plaintiff testified that she boarded the car at Tower Grove and Manchester, going over Manchester to Chouteau and to Twentieth and Market, at which point she got off the car, the usual place. She rang the bell at Twenty-First street for the car to stop at Twentieth and Market. The car stopping there, she left by way of the back door. It was a pay as you leave car. She was the first to get off. As she was stepping off and started to the pavement and had one foot on the back steps, the car jerked and threw her in the street, the car moving two or three feet, after which the girls got off and helped her up.

On cross-examination plaintiff testified that she did not make a complaint to the conductor of the car or tell him she had been injured. The car moved two or three feet as she was getting off and then stopped again. Two other girls also got off there. She did not see them turn or say anything to the conductor, because the car went on. The car was stopped when they got off. The car was going east. When the car started her left foot was going to the street, and the other one on the last step; the left foot being in the air. When this car started she was thrown, about southeast, almost toward the front of the car, the car going east. She was thrown from the car. She was lying kind of southeast towards the front of the car. Her feet were in a northwest position by the car to the rear end of the car, almost even with the back step.

Zella Cassidy, witness for plaintiff, testified in substance, that she went to work with plaintiff on the morning of October 15, 1920; that they boarded the car on Manchester and Tower Grove and went east to Twentieth and Market, riding on a Manchester car; the car usually stopping at the southwest corner of Twentieth and Market, the regular stopping place for passengers to get on and off the car. As the car stopped at Twentieth and Market it gave a jerk and threw plaintiff off; the car stopping again after plaintiff got off. Plaintiff alighted from the car ahead of witness and her companion. After witness alighted from the car, she helped plaintiff up, and then helped her to the factory where they were working.

On cross-examination witness testified that she was three or four feet from plaintiff as she was alighting from the car; that witness had been seated in the car, but was paying her fare. She did not know where she sat in the car. Plaintiff was also seated in the car, but not in the same seat. There was no one on the rear platform at the time of alighting. She did not know exactly how far the car moved. After it stopped, it gave a jerk and then was standing still again. It disturbed her while paying her fare. It did not throw her any distance, but she had to grab or she might have fallen. While plaintiff was getting off the car, witness was dropping in her fare.

This was, in substance, all the evidence that may be said even remotely to fix the ownership or the operation of the car on defendant.

I. Where defendant lays behind the ambush of a so-called demurrer to the evidence, refusing to challenge, before the trial court, the dearth of evidence connecting the defendant with the ownership, operation, or control of the car, and raising the question for the first time on appeal, slight proof of such fact or facts is enough to fix responsibility. These facts may be shown by direct or circumstantial evidence or by Inference. But there must be some proof. A total failure of such proof must necessarily be fatal to the one carrying the burden of showing it, which, in this instance, was borne by plaintiff.

II. Plaintiff contends that the pleadings inferentially admit that defendant was operating the car on which plaintiff was riding. The petition, as was proper, avers that defendant was operating the car, for this was an essential allegation. Frisby v. Transit Co., 214 Mo. 567, 113 S. W. 1059. It also states that defendant is and was at all times therein mentioned the duly qualified and acting receiver of the United Railways Company of St. Louis. The answer admits that the receiver is, and was at the time of plaint...