McNamara v. St. Louis Transit Co.

• Decision Date: 12 April 1904
• Citation: 106 Mo. App. 349,80 S.W. 303
• Parties: McNAMARA v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

80 S.W. 303

106 Mo. App. 349

McNAMARA v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals, Missouri.

April 12, 1904.

CARRIERS—INJURY TO PASSENGER—EVIDENCE—CONTRAVENTION OF PHYSICAL FACTS — INSTRUCTIONS—QUESTIONS FOR JURY—WEIGHT OF EVIDENCE — DAMAGES — EXCESSIVE VERDICTS.

1. In an action against a street railroad for injuries to a passenger, expert testimony that, the day being rainy, a street car, as a physical fact, could not be started with a jolt sufficient to throw any one down, as the wheels would slip along the wet rails, together with testimony by the weather observer that, on the day of the occurrence, rain had fallen .06 of an inch, and on the day preceding .37, was insufficient to conclusively refute, as impossible, plaintiff's account of the occurrence, which was that the car was started with an unusual and violent jolt, which precipitated her to the floor, where it was not shown at what hours the rainfall occurred, and it was disclosed that the motorman did not find it necessary to employ sand to prevent the car from slipping.

2. In an action against a street railroad for injuries to a passenger, the weight to be given testimony of street car employes as experts is for the jury.

3. In an action against a street railroad for injuries to a passenger, a charge that the jury in estimating damages might consider all the facts and circumstances, plaintiff's bodily injuries, and whether they were permanent in their nature, was not fatally deficient in its definition of the elements entering into a recovery; and, if defendant desired a more specific instruction, it should have requested it.

4. In an action for injuries to a passenger, where the testimony showed that the plaintiff was 35 years of age, and had been in the habit of performing the household duties of her family, and had, in consequence of the accident, been kept in bed for more than three months, and caused to suffer continuous pain from the time of the accident, in November, until the time of trial, in the following September, a verdict for $1,000 was not so excessive as to justify an inference of prejudice or passion.

Appeal from Circuit Court, Jefferson County; Frank R. Dearing, Judge.

Action by Fannie McNamara against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. Jno. P. Leahy, for respondent.

REYBURN, J.

In this action plaintiff seeks to recover for injuries alleged to have been sustained in the afternoon of November 17, 1902. Her petition charges, and the testimony in her behalf tended to show, that she boarded a south-bound car on Broadway, at southeast corner of Lucas avenue, on her way to where she lived, in southern part of the city of St. Louis. As she entered such car as a passenger, and was proceeding to take a seat, but before seating herself, in response to the conductor's signal the car was started with a sudden, severe jerk, and an unusual and violent jolt, which precipitated her to the floor, throwing her against a seat. The injurious...