Lucius v. Wells

• Decision Date: 06 May 1924
• Docket Number: No. 18162.,18162.
• Parties: LUCIUS v. WELLS
• Court: Missouri Court of Appeals

263 S.W. 546

LUCIUS v. WELLS

No. 18162.

St. Louis Court of Appeals. Missouri.

May 6, 1924.

1. Cariers 318(12)—Counuct of attorney held to concede company's ownership of street car.

In action for injuries to passenger of street car, conduct of case by corporation's attorney held to concede company's ownership of car.

2. Appeal and error 171 (i)— Street railway's ownership of cannot be considered for first time on appeal where ownership was conceded at trial.

Where case was tried on assumption street railway conceded its ownership of car on which passenger was injured, company could not raise objection for first time on appeal, under its demurrer to evidence, that its ownership had not been proved.

3. Evidence 528(2)—Admission of expert testimony that plaintiff's condition resulted from accident held not reversUs error.

In action against street railway for injuries to passenger, admission of testimony of expert that plaintiff's condition resulted from injury held not reversible error.

4. Damages 132(7).—$4,000 to woman for permanent injury to nervous system and right ankle held not excessive.

Award of $4,000 for injuries to passenger on street car incapacitating her from doing laundry and housework and permanently injuring her nervous system and right ankle, necessitating medical attention at time of trial two years after accident, held not excessive.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be officially published."

Action by Linka Lucius against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. W. Bates, T. E. Francis, and Alva W. Hurt, all of St. Louis, for appellant. Raithel & Zuckerman and Geo. P. Burleigh, all of St. Louis, for respondent.

DAUES, J.

This is an action for damages based on negligence. Plaintiff was injured, it is alleged, while attempting to board one of defendant's street cars in the city of St. Louis. The cause was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $4,000, and the defendant appeals.

The petition alleges that plaintiff was injured by a street car belonging to the United Railways Company of St. Louis, a Missouri corporation, and then in appropriate language avers that defendant Rolla Wells was at the time and is now the receiver of said property under a decree of the United States court. It is then charged that the defendant as such receiver through his agents operated this particular street car on the tracks laid in Jefferson avenue, near Olive street, in this city. The petition then alleges that on the day named plaintiff was a passenger upon an Olive street car, taking a transfer ticket entitling her to passage upon defendant's cars on Jefferson avenue, and that while the Jefferson avenue car was stopped and while plaintiff had one foot on the rear platform and one foot on the lower step, in the act of boarding the car, defendant's employees, without warning and before plaintiff had reasonable time to get aboard or secure a firm footing, caused the car to start motion, whereby plaintiff was thrown off and severely and permanently injured.

The answer admits that defendant was duly appointed receiver of the properties of the United Railways Company of St. Louis and answers the petition as such, but defendant denies generally all else in the petition.

At the trial, the defendant's counsel cross-examined the witnesses for plaintiff, and at the close of plaintiff's case offered a demurrer to the evidence. This being ruled against defendant, he offered no proof. Defendant asked and was given an instruction on the measure of damages.

Defendant contends the judgment should be overturned for three reasons: First, it is said the court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence; second, that prejudicial testimony was admitted; and, third, that the verdict is excessive.

The first point is sought to be made entirely upon the alleged failure of plaintiff to show that the defendant's agents operated this particular car. Learned counsel for plaintiff combat this challenge with several suggestions, which, in the main, are that there is sufficient evidence in the record to support the inference that defendant was in charge of the system of railways of which this car was a part, and that defendant's agent operated the car at the time of the accident; that the conduct of counsel for defendant throughout the trial was such as to impliedly concede that the defendant operated this car. This necessarily calls for the exposition of so much of the record as will determine the strength of plaintiff's position on this question.

Plaintiff's evidence tends to show that on April 21, 1920, about 6:30 p. m., plaintiff took passage on an Olive street car and received from the conductor of that car a transfer on the Jefferson avenue line. She got off the Olive street car at Jefferson avenue, intending to go north on Jefferson avenue. When the Jefferson avenue car arrived at the transfer point and stopped, plaintiff walked up to the car and waited in the street until several passengers alighted. When her turn came to get aboard the car, and while she had one foot on the platform and the other foot still on the doorstep, the operators suddenly started the car in motion and thereby threw her to the ground. It is plaintiff's testimony that no signal or warning of any kind was given, and that the door was open when the car started up, and that the jerk broke her hold on the rod of:the car. She testified that she was picked up in the street, and that the conductor and motorman of the car came back and took her name and address. As to the extent of her injuries, she said she had an aching and numb sensation from the back of her head to her ankle, making it painful for her to stand on her feet, and that at the time of the trial (January 3, 1922) she was still unable to sleep at night and was restless, and that she could not do much work. She says she has always done her own laundry and household work, but that she is now unable to do so. It is her further testimony that she must be assisted out of bed and lifted up when lying down. She testified that she was still suffering pain and has been under the car of a physician ever since the day of the accident.

We set out from the record enough to show the attitude of defendant with reference to the question of the ownership of the car in question, and also such evidence as may be considered giving ground for the inference of defendant's ownership of the car. We preface' this recital of the record with the observation again that the injury occurred on April 21, 1920, and that defendant's answer was filed February 25, 1921. In this answer it is admitted that Rolla Wells was appointed receiver of the United Railways property on the 12th day of April, 1919. The answer admits that Wells was receiver at the time of the filing of the answer, so it appears admitted that defendant was in charge of the United Railways Company of St. Louis at the time of the accident. The question then is whether the conduct of defendant's counsel at the trial impliedly conceded that this car on Jefferson avenue and Olive street which injured plaintiff belonged to the United Railways system, or is the record evidence sufficient to support the inference that such is the case?

The following appears in plaintiff's direct examination:

"Q. Where were you when you crossed over on the east side of Olive? A. On Olive, 2203; that was a residence where we went. Not finding the woman home, we crossed over on the east side of the street to take an Olive street car. I got on the car and secured transfers for Jefferson and Page, so when we got to the transfer point we crossed over on the south side of the street and waited until the car came along, and when the car came along we waited on the outside until the passengers got off.

"Q. Just a moment. What car was this? A. This was a Jefferson car going north.

"Q. At Jefferson and Olive? A. Jefferson and Olive. And after the passengers got off the car I tried to get on. I had my foot on the first step and the other one on the platform, and was in the act of stepping in, when the car suddenly moved off. It threw me from the top step down to the bottom of the ground.

"Q. Did the car, so far as you know, continue going, or did it stop? A. I was hurt so bad I can't state, but the people say

"Mr. Woodward (Counsel for Defendant): If the court please, I object to what the people said.

"Q. Do you know whether or not the conductor or motorman came back and took your name and address? A. Yes, sir; he came up.

"Q. Who was it came back? A. I don't know. "Q. Did they speak to you? A. Yes, sir; they asked me

"Mr. Woodward: Just a moment; if the court please, the conversation occurring long after the accident is objected to as not forming a part of the res gestm.

"Q. Do not repeat what anybody else says. A. When they took my clothes off I fainted because it seemed my side, something on the side, was broken.

"Mr. Woodward: If the court please, I move that the answer be stricken out.

"(The stenographer is asked to read the answer.)

"Mr. Woodward: This petition was amended by striking out your original claim of a fractured rib in this case. They came into open court and amended the petition by striking out all reference to those fractured ribs. I object on the further ground, if your honor please, that it is a conclusion and does not come from a person in any way qualified as an expert.

"Q. I will ask you to state if as a result of this accident, or since this accident, you have suffered pain in your back and head?

"Mr. Woodward: That is objected to, if your honor please, as invading the province of the jury.

"The Court: The objection will be overruled. "Mr. Woodward: Save an exception to your honor's ruling. (To which ruling of the court the...