De Lorme v. St. Louis Public Service Co.

• Decision Date: 20 June 1933
• Docket Number: No. 22510.,22510.
• Court: Missouri Court of Appeals
• Parties: DE LORME v. ST. LOUIS PUBLIC SERVICE CO.

61 S.W.2d 247

DE LORME v. ST. LOUIS PUBLIC SERVICE CO.

No. 22510.

St. Louis Court of Appeals. Missouri.

June 20, 1933.

Appeal from St. Louis Circuit Court; Fred J. Hoffmeister, Judge.

"Not to be published in State Reports."

Action by Edward De Lorme against the St. Louis Public Service Company, revived after plaintiff's death in the name of Anna De Lorme, administratrix. Judgment for plaintiff, and defendant appeals.

Reversed.

T. E. Francis and B. G. Carpenter, both of St. Louis, for appellant.

Hay & Flanagan, of St. Louis, for respondent.

BECKER, Presiding Judge.

This is an action for damages for personal injuries alleged to have been sustained by Edward De Lorme, by being struck by the rear end of one of defendant's street cars as it rounded a curve at Third street and Washington avenue in the city of St. Louis.

The action was originally brought by De Lorme. He died pending the action; his death, however, not being caused by nor did it result from the injuries sought to be recovered for in this action. Anna De Lorme, his widow, as administratrix of his estate, filed a second amended petition upon which the case was tried. Judgment resulted for plaintiff, and the defendant in due course appeals.

Our reading of the record has brought us to the conclusion that the trial court erred in overruling the demurrer offered by defendant at the close of the case.

Plaintiff's second amended petition alleges that the defendant maintained a line of street car tracks on Washington avenue, an east and west street in the city of St. Louis, and that there was a regular stopping place at the east end of said line at Third street and Washington avenue for receiving and discharging passengers; and that the east-bound cars at said intersection made a loop and turned there to start on their return west; that Edward De Lorme, at 3 o'clock in the afternoon of October 31, 1928 "traveled across the said intersection of said streets, toward the front door of said street car and toward defendant's tracks, and stood at the regular stopping place for the purpose of becoming a passenger on said car, and while the said De Lorme was standing at said place near the tracks of the defendant and on that part of the street and tracks used by the rear end of said car when turning to the left, a street car started in motion, causing the said end of the car to hit, strike, and collide with the said Edward De Lorme and he was thereby caused to sustain * * * serious injuries."

The answer was a general denial coupled with a plea of contributory negligence to the effect that whatever injuries plaintiff's decedent may have sustained were caused by his own negligence and carelessness in going toward and in close proximity to a moving street car when he saw, or heard, or by the exercise of ordinary care could have seen or heard, the moving street car in time to have averted the collision.

Plaintiff adduced a witness, one Schuchman, whose testimony, if believed, tended to prove the cause of action set up in plaintiff's petition. Another witness, Kilroy by name, gave corroborating testimony to the effect that De Lorme was struck by the rear end of the street car at the place mentioned in the petition, and that the witness had taken him to the hospital. Dr. Joseph P. Berman testified as to De Lorme's injuries. There were several other witnesses who testified as to the character of De Lorme's employment and what salary he earned when at work.

On behalf of the defendant, the deposition of De Lorme was read in evidence, from which we quote the following questions and answers:

"Q. Were you injured on the 31st of October, 1928? A. Yes, sir.

"Q. Whereabouts in the city? A. Third and Washington.

"Q. How were you injured? A. Knocked down from the rear end of the car about twenty feet.

"Q. Where were you standing at the time you were struck by the car? A. I was going to catch the car while it was going around the curve.

"Q. Was the street car going around the curve? A. Yes, sir.

"Q. In what direction was it headed at the time of the accident? A. Headed north.

"Q. What direction were you going at that time? A. I was coming up from the east.

"Q. Where had you been and where were you going? A. I was down to the river and came up to Third and Washington going to catch a car there. * * * "Q. Was the car in motion when you first saw it? A. No. It was stopped. That is why I ran there to catch it, and it started up.

"Q. How far away were you when it started up? A. About twenty feet.

"Q. Had the car been stopped before you ran for it? A. Yes, sir.

"Q. It wasn't in motion when you first saw it, was it? A. No, sir.

"Q. Was the door open or closed at the time that you started to run for it? A. It was open.

"Q. But the car itself was in motion, was it? A. It started up.

"Q. And you were then twenty feet away? A. Yes, sir.

"Q. How fast was the car then going? A. Oh, probably about five miles an hour.

"Q. What part of the car struck you? A. The rear end.

"Q. Was the car in the curve at the time? A. Not when I started to run for it.

"Q. At the time it struck you, I mean? A. Yes, absolutely.

"Q. You saw the car was going around the curve, did you? A. Yes, sir. * * *

"Q. Was that a car that had an entrance at the front and an exit in the middle? A. No, front and rear entrance. * * *

"Q. Did you see the conductor in that car? A. No, sir.

"Q. Did you see any other passengers get on the car? A. I did not. * * *

"Q. At the time that the car struck you, were you standing still or running or walking? A. Standing still.

"Q. Had you walked or run the intervening twenty feet? A. Walked.

"Q. And did you keep on walking, or did you run? A. I ran until I got up to beyond the corner about twenty feet from the car and walked the twenty feet towards car and he slammed the door.

"Q. Who slammed the door? A. The conductor, I guess. The door closed.

"Q. Which door was it that was slammed? A. The rear end.

"Q. How far away were you from the car when the door at the rear end was closed, was shut? A. About twenty feet.

"Q. So that while you were still twenty feet away from the car, all of the doors were closed, were they? A. Why certainly.

"Q. Did you notice the rear end swinging out toward you? A. I did not until it hit me.

"Q. Not until it hit you? A. Yes.

"Q. Were you looking at the car all the time? A. Why certainly.

"Q. You were facing the car all of the time from the time you saw it twenty feet away? A. Yes.

"Q. Did you see any other traffic at that place at that time? A. Yes, an automobile went by me, back of me. * * *

"Q. It was headed in an easterly direction on Washington? A. Yes.

"Q. It was going east there between Fourth and Third, that-is, it was going toward Third Street? A. Yes, sir.

"Q. You say that went by behind you? A. Yes, sir.

"Q. Did that automobile come close to you? A. Well, not very, eight or ten feet, something like that.

"Q. And where were you standing at that time? A. About twenty feet from the rear end of the car I guess.

"Q. Were you standing there at the time that you were hit? A. I was up a little bit closer then.

"Q. Then the automobile had gone by before you moved? A. Yes.

"Q. Did the automobile come so close to you that you were forced to move forward into the path of the car? A. Yes, close enough so that the rear end of the car hit me."

At the close of the case defendant requested an instruction in the nature of a demurrer, which was refused.

Appellant here contends that the court should have given defendant's requested instruction in the nature of a demurrer, at the close of the whole case, because plaintiff was bound by the testimony of her deceased husband as to how the accident happened, and that such testimony, as a matter of law, showed there was no liability on the part of the defendant, and therefore plaintiff could not recover upon the testimony of other witnesses in the case whose testimony was in direct conflict with that which the deceased, De Lorme, himself testified to, when such testimony dealt with actual facts and not with respect to opinion evidence. The point is well taken.

Plaintiff submitted her case to the jury upon the humanitarian doctrine alone. The instruction predicated a recovery by plaintiff if the jury found and believed that one of defendant's street cars had stopped at the usual stopping place for receiving and discharging passengers at Third street and Washington avenue, and that De Lorme walked toward the front door of the said car and stood "at the regular stopping place for the purpose of becoming a passenger on the car mentioned in the evidence, and that when said street car was set in motion and turned to the left it was necessary that the rear end of the car pass over the place where Edward De Lorme, the deceased, was standing," and that the defendant's servants in charge of the car saw, or by the exercise of ordinary care could have seen, De Lorme standing there, and knew, or should have known, he was in danger of being struck by the rear end of the car when the car was set in motion, and that the car was started, and in turning to the left the rear end struck De Lorme and injured him, provided that at the time De Lorme stood at or near the front door he was in a position of imminent peril of being struck by the car, and the servants of the...