Mendenhall v. Springfield Traction Co.

• Citation: 26 S.W.2d 50
• Decision Date: 27 March 1930
• Docket Number: No. 4745.,4745.
• Parties: MENDENHALL v. SPRINGFIELD TRACTION CO.
• Court: Court of Appeal of Missouri (US)

26 S.W.2d 50

MENDENHALL v. SPRINGFIELD TRACTION CO.

No. 4745.

Springfield Court of Appeals. Missouri.

March 27, 1930.

Appeal from Circuit Court, Greene County; John Schmook, Judge.

"Not to be officially published."

Action by Florence Mendenhall against the Springfield Traction Company. From judgment for plaintiff, defendant appeals.

Reversed and remanded.

Frank B. Williams, of Springfield, and F. B. Holland, of Kansas City, for appellant.

C. W. Hamlin, of Springfield, for respondent.

BAILEY, J.

This is an action to recover damages for personal injuries sustained by plaintiff as a result of a fall while a passenger on one of defendant's street cars. Plaintiff obtained a verdict of $500, and defendant has appealed from the judgment entered thereon.

The petition in this case charges that plaintiff did, on the second of October, 1928, board one of defendant's street cars for the purpose of being conveyed to her home. The charge of negligence is as follows: "That when she got on she attempted to pay the motorman and did pay him the fare charged by the defendant, but the moment that she paid him and before she had time to turn around and find a seat, he suddenly, carelessly, and negligently started up said street car with a jerk which threw plaintiff prone upon the floor of said street car. That she was not able to protect herself in the fall and fell heavily upon the floor of said car, bruising her hip and her limb, wrenching her back," etc.

No other negligence is charged. Defendant urges that the petition charges specific negligence, and that plaintiff failed to prove such negligence, wherefore its instruction in the nature of a demurrer to the evidence should have been given. Plaintiff insists that the negligence charged is general, and that the doctrine of res ipsa loquitur applies. Defendant's contention that the petition avers specific negligence must, we think, be upheld. The authorities in this state have settled that question. The rule seems to be that in negligence cases, such as here, where the petition states the particular servant guilty of negligence, and also asserts the manner in which such servant was negligent, the petition must be construed to be bottomed on specific, and not general, negligence. Stolovey v. Fleming et al., 320 Mo. 946, 8 S.W.(2d) 832; Grimm v. Globe Printing Co. (Mo. Sup.) 232 S. W. 676; Bergfeld v. K. C. Ry. Co., 285 Mo. 654, 227 S. W. 106.

The petition in the case at bar, from which we have quoted, clearly points out the motorman as the particular servant of defendant guilty of negligence, and further alleges the specific negligent act of the motorman, to wit, the sudden and careless starting of the street car with a jerk. The petition, therefore, falls clearly within the rule above set forth, and must be held to allege specific negligence.

The next question is whether or not plaintiff offered any substantial evidence tending to prove the specific allegations of negligence contained in the petition. In considering the demurrer she is entitled to the full weight of any substantial evidence offered by either plaintiff or defendant which might tend to support her case, together with all reasonable inferences deducible from such evidence. Toeneboehn v. St. Louis & San Francisco Ry. Co., 317 Mo. 1096, 298 S. W. 795.

Plaintiff was the sole witness for herself as to the manner in which the accident occurred. She testified that she boarded one of defendant's street cars on the 2d day of October, 1928, intending to go to her place of residence; that she had two or three little packages in her hand; that "I entered the car at the front end, the motorman was right there in the front of the car. In getting on the car I was facing east; the car was going south; I stepped upon to the car; entered the vestibule and paid the motorman my fare; I was kind of facing in a Southeast direction; the motorman stood here; I stepped up on the car and turned here; standing possibly at that time in a southeast direction; as I handed him my fare the car started forward with a jerk; I dropped everything and grabbed for those posts, there are posts right there, even dropped my purse and everything, grabbed with both hands at the post, I was thrown so suddenly with the sudden jerk I didn't get hold of the post and I went down into the floor with my back into the car.

"Q. Just state the position you were in when this jerk of the car came? A. Just as I was standing when I paid the motorman my fare; I was standing in this direction (witness indicated) had the packages in this hand (witness indicated) and I paid him my fare; but before I could turn, I hadn't turned at all, I was in the same position, southeast position, when the jerk came; and I threw everything and grabbed for the posts, but missed them and down I went and struck upon this hip (witness indicated hip).

"As I stepped upon on this car this way I paid the motorman my fare; when the car started I fell back this way, struck right there; there is a sore spot, still sore and this ankle bone right here, the back of it was bruised, I possibly struck the step; I don't know;...