McCaffery v. St. Louis & M. R. R. Co.

• Decision Date: 22 November 1905
• Court: Missouri Supreme Court
• Parties: McCAFFERY v. ST. LOUIS & M. R. R. CO.

90 S.W. 816

192 Mo. 144

McCAFFERY v. ST. LOUIS & M. R. R. CO.

Supreme Court of Missouri, Division No. 1.

November 22, 1905.

1. TRIAL—DEMURRER TO EVIDENCE.

In an action for injuries, defendant's demurrer to the evidence, on the ground that the only testimony on which plaintiff was entitled to go to the jury was her answer to a leading question, which was in conflict with her previous testimony, was properly overruled, where she had already testified without objection or prompting by counsel to the fact elicited by the leading question.

2. APPEAL—HARMLESS ERROR.

A party is not injured by an answer to a leading question, where the witness has already testified without objection or prompting by counsel to the fact elicited by the question.

3. NEGLIGENCE—ACTION—INSTRUCTIONS.

In an action for negligence, where an instruction clearly requires the jury to find all the facts which go to make up the negligence charged in the petition, the failure to use the word "negligently" does not render it erroneous.

4. CARRIERS—INJURY TO PASSENGER—NEGLIGENCE —INSTRUCTION—MODIFICATION.

In an action for injuries to a passenger in alighting from a car, an instruction that the only charge which plaintiff brings against defendant is that the car had come to a full stop for the purpose of letting plaintiff get off, and those in charge, being defendant's employés, negligently started the car with a sudden motion while plaintiff was in the act of getting off, and in determining defendant's liability the jury must not consider any other question of negligence, was not erroneously modified by striking out "for the purpose of letting plaintiff get off."

5. TRIAL—INSTRUCTIONS—CREDIBILITY OF WITNESS.

In an action for injuries to a passenger, a requested instruction that the jury are the sole judges of plaintiff's credibility, and statements made by her, if any, which are against her own interest, must be taken as true, is properly modified by inserting "are presumed to be," instead of "must be taken as."

6. SAME—REQUEST TO CHARGE—INSTRUCTIONS ALREADY GIVEN.

In an action for injuries to a passenger, where an instruction required the jury affirmatively to find the facts stated in the petition and embodied in the theory of plaintiff's case before they could find for plaintiff, it was not error to refuse a requested instruction on the same question in a negative form.

7. CARRIERS—INJURY TO PASSENGER—PLEADING —VARIANCE.

In an action for injuries to a passenger, where the petition charged the place of the accident at or near the intersection of certain streets, and the evidence showed the place reasonably within the zone specified, there was no material variance.

8. EVIDENCE—EXPERT TESTIMONY.

In an action for injuries, where the petition charged that plaintiff was suffering from traumatic neurosis, it was not error to permit a physician to be asked what, basing his opinion on the symptoms he saw in regard to plaintiff, was the cause of the nervous affliction, which he termed "traumatic neurosis," from which she was suffering during the time he was treating her, over objection that it was incompetent and not predicated on any facts which the evidence tended to show, and called for a conclusion.

9. DAMAGES—EXCESSIVENESS.

In an action for personal injuries, a verdict for $5,000 was not excessive, where it appeared that plaintiff was badly cut and bruised about her body, one of her limbs fractured near

the hip joint, and her nervous system greatly and permanently shocked.

Appeal from St. Louis Circuit Court; Franklin Ferris, Judge.

Action by Rosa McCaffery against the St. Louis & Meramec River Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jefferson Chandler and John L. Davis, for appellant. Geo. Safford and Thos. B. Harvey, for respondent.

MARSHALL, J.

This is an action for $20,000 damages for personal injuries received by the plaintiff about half past 5 o'clock in the evening of December 21, 1900, in consequence of being thrown from one of defendant's cars on Manchester avenue, just west of Kraft avenue, in the city of St. Louis. The plaintiff recovered a judgment for $5,000, and the defendant appealed.

The Issues.

The substance of the petition is that the plaintiff was a passenger on the defendant's car, and, when approaching Kraft avenue, she signaled for the car to stop at said avenue, as she desired to leave the car at that point; that the car stopped, and, while she was in the act of alighting therefrom, and before she had time so to do, and while the agents of the defendant knew that she was in the act of so doing, and without warning to the plaintiff, the operatives of said car negligently caused the car to start forward with a sudden and unusual jerk, whereby the plaintiff was thrown violently to the pavement of the street, and "was badly cut and bruised about her body, arms, legs, spine and hips, and the femur of her left leg fractured at or near the hip joint, and her nervous system was greatly and permanently shocked and debilitated. Plaintiff further states that, by reason of said injuries, she has suffered, is suffering, and during the rest of her life will continue to suffer from great pain of body and anxiety of mind, and from great pain in and about her left leg, from the eversion of her left foot, from shortening of her left leg, from numbness of her hands and legs, from defective eyesight, from insomnia, from partial loss of the sense of touch, from vertigo and dizziness, from melancholia, from œdema or swelling of the left ankle, from paralysis of the left limb, from defective hearing, from paralysis of the bladder, from an inability to properly contain her urine, from a nervous heart, and from traumatic neurasthenia." The answer of the defendant is a general denial, coupled with special pleas as follows: First, contributory negligence; second, an ordinance of the city of St. Louis providing that street cars shall stop on the far side of intersecting streets, with which plaintiff was charged with notice; third, that when the car had passed Kraft avenue, a distance of about 150 feet, as plaintiff well knew, and before it stopped, the plaintiff negligently attempted to get off of the car while it was in motion, and where there was no intersecting street, without signaling for the car to stop; fourth, that the plaintiff negligently attempted to get off the car while it was in motion; fifth, that the plaintiff negligently took the management of the car unto herself, and attempted to get off of the car at a certain place without signaling the car to stop or expressing her desire to leave the car at that place; sixth, that the plaintiff did not use ordinary care in attempting to get off the car; seventh, that the plaintiff negligently attempted to get off of the car at a place which was not designated for cars to stop to let passengers off. The reply is a general denial.

The case made is this: The plaintiff was a woman 54 years of age. On the day of the accident she and her daughter had been down town shopping and were on their way home on one of defendant's cars. She desired to leave the car at Kraft avenue. She directed her daughter to press the button, as a signal of her intention to leave the car, a half block east of Kraft avenue. The daughter did so. Plaintiff arose, went to the back platform, and stood in the doorway until the car stopped. Two men boarded the car, and plaintiff was compelled to wait until they got onto the platform, then she proceeded to alight. As she stood on the bottom step and was proceeding to step onto the street, the car gave a sudden jerk, threw her to the roadway, and injured her in the manner and to the extent specified in the petition. Kraft avenue ends at Manchester Road, and does not extent across the same toward the south. At Kraft avenue the street was muddy. The car stables of the defendant company were on the block between Kraft avenue and Waldemar. The car did not stop at the west side of Kraft avenue, the motorman says, because it was muddy at that point, and that, when such was the case, it was the custom to go about 15 feet further west, and stop at a cinder path that extended from the car across the street to the sidewalk, and that he stopped at the cinder path on this occasion, both because of this fact and because of the further fact that the train crew were to be relieved for supper at that time and the extra crew were to take charge of the car. After falling, the plaintiff was unable to rise or help herself, and was picked up, carried into the office of the defendant, and thence taken home, where she was confined to her bed for three months, under the treatment of a physician, and thereafter was under the constant care of a specialist and of trained nurses for a year, and has ever since been unable to walk without crutches; and the testimony shows without contradiction that she sustained all of the injuries specified in the petition. At the close of the plaintiff's case, the defendant demurred to the evidence. The court overruled the demurrer, and the defendant excepted. The defendant's evidence tends to show that the car did not stop at all; that no signal was given by the plaintiff to stop; that the relief crew boarded the car while it was in motion, and, while the conductor was engaged in having the relief conductor sign the register statement, showing the number of fares that had been paid up to that time, the plaintiff attempted to get off of the car while it was in motion, and was thrown to the ground and was injured; that the place at which she thus attempted to get off of the car was at the cinder path which was near the center of the car sheds, and not within 15 feet of the west side of Kraft avenue. On the case in chief, and again in rebuttal, the plaintiff's evidence tended to show that it was customary to stop at the cinder path in muddy weather, and not at the west side of Kraft avenue, in order to permit...