McCormack v. United Rys. Co. of St. Louis

• Citation: 238 S.W. 579
• Decision Date: 07 March 1922
• Docket Number: No. 16981.,16981.
• Parties: McCORMACK v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

238 S.W. 579

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

No. 16981.

St. Louis Court of Appeals. Missouri.

March 7, 1922.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Lucinda McCormack against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and George T. Priest, all of St. Louis, for appellant.

Safford & Marsalek, of St. Louis, for respondent.

BIGGS, C.

This action for personal injuries, alleged to have been caused by the negligence of the defendant in operating one of its street cars, resulted in a verdict and judgment for the plaintiff for $4,500. Defendant appeals, assigning error in the action of the trial court in refusing to sustain its demurrer to the evidence, and likewise error in the giving of plaintiff's main instruction.

The instruction referred to, and which was authorized by proper allegations in a petition and which sets forth plaintiff's theory of a right of recovery, is as follows:

"The court instructs the jury that, if you believe and find from the evidence in this case that on the 18th day of July, 1917, defendant was engaged in operating a street railway and car for the purpose of transporting passengers for hire, and that on said day plaintiff boarded said car for the purpose of being transported, and paid her fare, and became and was a passenger thereon, and that said car then moved northwardly along and over Grand avenue to Cass avenue, and that as said car was approaching Cass avenue plaintiff signaled and notified the servants of defendant in charge of said car to stop the same for the purpose of permitting her to alight therefrom at the intersection of Grand avenue and Cass avenue, and that thereupon said car was brought to a full stop at the south side of said intersection, and that said point was then and theretofore habitually used and recognized as a proper place for passengers to alight from defendant's northbound Grand avenue cars at Cass avenue, and that plaintiff thereupon proceeded to alight from said car with reasonable expedition, and that while plaintiff was alighting from said car and before she had fully alighted therefrom, and while she was, in a position of danger defendant caused the step of said car to rise, and in causing said step to rise (if you find defendant did so) defendant was guilty of negligence, and by said negligence (if any) directly and proximately caused plaintiff to be thrown from said car upon the street and thereby to be injured and damaged, then you will find in favor of plaintiff and against the defendant."

It is first asserted by the defendant that the verdict is unsupported by any substantial proof to the effect that the defendant caused the step of the street car to rise, which caused plaintiff to be thrown from the car upon the street. The car was equipped with sliding doors, divided in the middle. These doors moved away from each other as they were opened, and came together as they were closed. The car was also equipped with a step, which lowered when the doors were opened and raised when the doors came together. The doors were opened and closed and the step lowered and raised by means of a lever operated by the conductor. There was no controversy over the other facts hypothesized in the instruction. The only question presdnted is whether or not the evidence was sufficient to make an issue for the jury on the question as to whether the defendant caused the step to rise, and thereby caused the plaintiff to fall as she was alighting from the car.

The plaintiff, a woman 65 years of age and weighing about 200 pounds, testified that the car at the time was crowded, and that she stood in the aisle about five feet from the rear platform; that when the car approached Cass avenue she rang the bell, in order to give notice that she desired to get off; that the car in response to her signal stopped at the regular stopping place on the south side of Cass avenue; that plaintiff made herway to the platform of the car and. passed the conductor, who was standing on the west side of the platform at his usual place; that when plaintiff walked to the edge of the back platform the car was standing still, with the doors open; that when she proceeded to step from the car, and had her left foot on the step and her right on the ground (in the language of the witness), "they gave the signal and jerked the step, and it caught my skirt, and I hung from the car like this (indicating) until my skirt tore out, and then I fell to the ground." Plaintiff further testified as follows:

"Q. When you stepped from the platform, or in stepping from the platform to the street, you first stepped upon the step? A. Yes, sir. Q. And then from the step a passenger would step down into the street? A. Yes, sir. Q. Now, how far did you get before the accident occurred? A. Just my right foot on the ground and my left foot was on the step. Q. Now, when you were in that position, with your right foot on the ground and your left foot on the step, and your right hand ahold of this hand rail, what occurred? A. It jerked the step up. Q. The step...