Maloney v. United Rys Co. of St. Louis

• Decision Date: 31 December 1921
• Docket Number: No. 22394.,22394.
• Citation: 237 S.W. 509
• Parties: MALONEY v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

237 S.W. 509

MALONEY v. UNITED RYS. CO. OF ST. LOUIS.

No. 22394.

Supreme Court of Missouri, Division No. 2.

December 31, 1921.

Motion for Rehearing Denied February 18, 1922.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Action by Margaret Maloney against the United Railways Company !of St. Louis. Judgment for the plaintiff, and defendant appeals. Affirmed.

This action was commenced by plaintiff on January 17, 1919, in the circuit court of the city of St. Louis, Mo., against the United Railways Company of St. Louis, to recover damages sustained by her on account of defendant's alleged negligence. The case was tried on an amended petition, which alleges, among other things, that, on November 28, 1918, defendant was a Missouri corporation and engaged as a common carrier in carrying passengers for hire in St. Louis, Mo.; that while so engaged it stopped and invited plaintiff to board one of its south-bound Grand Avenue cars, at or near the intersection of Grand avenue and North Market streets, in the city of St. Louis, Mo.; that in compliance with said invitation, at the customary and usual place for passengers to board and alight from defendant's cars, with the means and intention of paying defendant her fare, and being transported by it as a passenger for hire, on said car, plaintiff accepted said invitation, and proceeded to board said car with reasonable expedition, "whereupon defendant, while plaintiff was in the act of boarding said car, and before she had reached a place of safety thereon, and before she had had a reasonable opportunity to reach a position of safety, and while she was in a position of danger, and while defendant by its servants and agents then and there in charge of said car, by the exercise of ordinary care, might have known and knew that plaintiff was in the act of boarding said car and in a position of danger, negligently caused and permitted the doors of said car to partially close and the step of said car to be raised, thereby throwing plaintiff forward and against the platform of said car, and catching plaintiff's left limb between the step and side of said car, and thereby directly and proximately caused plaintiff to be injured," etc. Said petition then sets out the injuries complained of, and damages are claimed in the sum of $15,000, on account of defendant's negligence aforesaid, etc.

The answer to said amended petition contains a general denial, and an alleged plea of contributory negligence which reads as follows:

"For further answer and defense, defendant says that whatever injuries plaintiff may have sustained, if any, were caused by her own carelessness and negligence in attempting to board a moving street car."

The reply is a general denial.

Plaintiff's evidence tends to show that, on or about the 28th of November, 1918, she was injured while boarding one of defendant's cars with the intention of paying her fare and becoming a passenger thereon. The accident occurred at the corner of Grand avenue and North Market street in the city of St. Louis, Mo. Grand avenue runs north and south, and is occupied by two of defendant's tracks running in the same general direction. The north-bound cars run on the east track, and the south-bound cars on the west track. North Market street runs east and west, and intersects Grand avenue. The accident occurred, while plaintiff was attempting to board a south-bound car, at the northwest corner of the intersection of said streets, which was the usual place for passengers to board defendant's cars.

It appears from the evidence that plaintiff, with her husband and young child, three years of age, had been visiting relatives on Fall avenue, a north and south street, located a block west of Grand avenue. Respondent and her said family started for their home about 12:15 o'clock a. m., walking south to North Market street, and thence east to Grand avenue. It had been raining in the early evening, but when respondent and family started home the heavy rain had ceased, but it was still sprinkling slightly. Plaintiff and family proceeded to Grand avenue and North Market street, and while waiting for the car, which they expected to take, they stood under a shelter at the southwest corner of the intersection of said streets. While thus waiting, it again commenced raining hard. In a short time thereafter Mrs. Mamie Maloney and daughter, Sadie, with whom plaintiff had been visiting, appeared with an umbrella, and remained with them until the car came. When the car, which plaintiff and family expected to take was about two blocks away, the above parties crossed North Market street to the northwest corner. Mrs. Mamie Maloney and her daughter waited at the corner, while plaintiff, her husband, and child went into the street and waited for the car's approach. Plaintiff's child was still in her arms, while her husband held the umbrella over them. The husband of plaintiff had a basket on his arm, and was standing south of his wife. When the car stopped, the doors leading to the rear platform of the car were directly in front of plaintiff and her husband as they stood facing east. The car was lighted, and the conductor stood in a booth at the east side of the car. The booth adjoined the platform and extended into the body of the car. The rear platform was equipped with two sliding doors and a step, which were controlled by a lever operated by the conductor. As the doors closed, the steps raised to a vertical position, and when the doors were opened the step dropped. The same motion of the lever moved both doors and the step. When the doors were shut, they entirely closed the entrance to the car, and formed the right side of the platform. The doors divided in the middle, and in opening one moved to the front and the other toward the rear of the car. There was an iron handhold near the edge of the platform, opposite the rear end of the step. It was so arranged that when the door closed this handhold was on the inside. Plaintiff testified, in substance, that when the car came to a stop the conductor opened the car door; that she then put her left foot on the step, and took hold of that bar on the inside of the car; that she started to put the baby down on the platform, the conductor rang the bell, and she fell; that when the car started the step went up and threw her forward; that it was the step which threw her as it went up; that her hand was knocked loose from the bar by the door; that the doors came close enough together to hit the baby on each side of the head; that she (plaintiff) fell almost to the platform; that her side struck the platform of the car, at the edge; that when the doors came together her left leg was caught between the step and car; that while her leg remained in that condition, the car had moved about four or five feet; that the conductor opened the door and released her; that she then got out of that position with the assistance of her husband; that she was attempting to board said car for the purpose of going home; that her husband had the means to pay her fare, and she was intending to ride on said car as a passenger; that said car was operated by defendant; that when the step went up her leg was bent under her, and was caught between the step and car; that when the step went up it struck her shin and knee; that part of her body was inside the car, resting on the platform. The plaintiff and Dr. W. M. Hangen, very fully testified as to her injuries, etc., which will be considered later.

Plaintiff's testimony, as to what occurred at time and place of accident, and as to the surroundings, is corroborated by the testimony of Mrs. Mamie Maloney and her daughter, Sadie, who were both present when said accident occurred.

At the conclusion of plaintiff's case, defendant's demurrer to the evidence was overruled. Thereupon defendant introduced as witnesses George W. Walker, the conductor in charge of said car, and E. R. Ames, the motorman thereon. These two witnesses controvert some of the material facts testified to by plaintiff and her witnesses, but as it is not the province of this court to pass upon the weight of the testimony, we have simply set out a part of plaintiff's case, in order to show that she produced substantial evidence as to the merits of the controversy and was entitled to go to the jury thereon.

The defendant likewise produced as witnesses Dr. Theodore L. Carriere and Dr. Frank J. Dietz, whose testimony appears in the record and will be considered later.

The plaintiff testified in rebuttal that Dr. Dietz, who was not her physician, advised her not to use her limb until after the expiration of from four to six weeks. She also testified that Dr. Dietz twisted her limb backwards and forwards, and that the bone went right out of place.

At the conclusion of the whole case, defendant's demurrer to the evidence was again overruled.

The instructions given and refused, as well as the rulings of the court during the progress of the trial, will be considered, as far as necessary, in the opinion.

Ten of the jurors returned a verdict in favor of plaintiff for the sum of $8,000, and judgment was entered thereon. Defendant in due time filed a motion for a new trial which was overruled, and the cause duly appealed by it to this court.

T. B. Francis, Charles W. Bates, and Albert D. Nortoni, all of St. Louis, for appellant.

John F. Maloney and Marsalek Stahlhuth, all of St. Louis, for respondent."

RAILEY, C. (after stating the facts as above).

1. Appellant's first contention is to the effect that the trial court should have sustained its demurrer to the evidence at the conclusion of the whole case, because plaintiff's testimony as to how she was injured is contrary to the physical facts. We are not advised by counsel as to what physical facts he refers to, nor is any attempt made to point out any physical facts which appear to conflict with respondent's testimony as to the manner in which her injuries were...