Monroe v. United Rys. Co.

• Decision Date: 30 December 1910
• Citation: 154 Mo. App. 39,133 S.W. 645
• Parties: MONROE v. UNITED RYS. CO.
• Court: Missouri Court of Appeals

133 S.W. 645

154 Mo. A. 39

MONROE v. UNITED RYS. CO.

St. Louis Court of Appeals. Missouri.

December 30, 1910.

Rehearing Denied January 24, 1911.

1. APPEAL AND ERROR (§ 181) — NECESSITY FOR OBJECTION.

Exception without being preceded by objection, when objection is required, is no more available than objection without being followed by exception.

2. APPEAL AND ERROR (§ 938) — REVIEW — PRESUMPTIONS — OBJECTIONS AND EXCEPTIONS.

While a trial court may adopt a rule whereby objections and exceptions will be assumed to have been saved to the giving or refusal of instructions under which such objections and exceptions may be incorporated in the bill of exceptions and considered on appeal, the Appellate Court will not assume under such a rule that objections or exceptions were saved, where they are not noted in the bill of exceptions.

3. APPEAL AND ERROR (§ 882) — REVIEW — PRESUMPTION—THEORY OF CASE.

It is not to be understood that a defendant acquiesces in the theory of the case presented by plaintiff's instructions by asking countervailing instructions.

4. CARRIERS (§ 303)—INJURIES TO ALIGHTING PASSENGER—NEGLIGENCE.

Notwithstanding that the usual stopping place of a street car may be on the further side of a street intersection, yet if it stops before crossing the street, and a passenger is led to believe that it is in obedience to her signal to give her an opportunity to alight, it would be negligence of the carrier's servants in charge knowingly to allow the car to start while the passenger is alighting so as to throw her to the ground.

5. CARRIERS (§ 303) — OPERATION — DUTY IN STARTING CAR.

Employés in charge of a street car stopping at a point near a street crossing where passengers customarily get off though such point is not a regular stopping place must exercise due care before again starting the car to see that passengers getting on or off will not be endangered by putting the car in motion.

6. CARRIERS (§ 333) — OPERATION OF CARS — DUTY IN STARTING.

Where a car stops at such a point as if in obedience to her signal, a passenger may reasonably consider the act of stopping as an invitation to alight, and may reasonably assume that the operatives of the car will conduct themselves accordingly.

7. CARRIERS (§ 303)—CARRIAGE OF PASSENGERS—DUTY TOWARD ALIGHTING PASSENGER.

The duty of a carrier safely to discharge a passenger embraces the duty to allow a reasonable time for the passenger to alight safely, and any movement of a street car after stopping to discharge a passenger in obedience to signal prior to expiration of a reasonable time is negligence, and in violation of the implied contract safely to carry and discharge him, imposed upon the carrier by law.

8. WITNESSES (§ 369)—CREDIBILITY.

An agent of a street car company had a right to assemble witnesses where they could be examined by themselves or by counsel as to their testimony to be given in a particular case in which the company was interested, and the fact that he had done so would not affect his testimony in a personal injury action against the company, as to the measurements of the street where the accident occurred.

9. EVIDENCE (§ 548)—OPINION EVIDENCE.

In an injury action, where physicians had testified to the physical condition of the injured person, they were competent to testify as to their opinions based upon the objective symptoms which they had discovered as to whether the injured person was at the time of trial suffering bodily pain due to the injury, and as to the effect and probable consequences of the injury, over the objection that their opinions were based upon matters not in evidence.

10. WITNESSES (§ 56) — COMPETENCY — HUSBAND AS WITNESS FOR WIFE.

In an injury action by a wife, testimony of her husband that she had sent him to a physician to procure medicine for her, and to inform the physician of her condition, that he might prescribe for her, held admissible under Rev. St. 1909, § 6359, providing that a husband shall not be disqualified as a witness in a civil suit prosecuted in the name of his wife, when such suit is connected with any matter of business conducted by such married man as the agent of his wife.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Edna Lee Monroe against the United Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff while attempting to alight from one of defendant's cars upon which she was a passenger. After formal averments and matters of inducement, plaintiff charges in her amended petition, upon which the case was tried, that on the day named she boarded a north-bound Jefferson avenue car of the defendant for the purpose of being transported as a passenger, paying her fare, and while being transported as a passenger northwardly, along and over Jefferson avenue, in the city of St. Louis, and when the car was at or near the intersection of Olive street and Jefferson avenue, the conductor in charge of the car notified plaintiff that the car was then about to stop at the intersection of those streets for passengers to alight therefrom; that thereupon defendant stopped the car for the purpose of allowing passengers to alight therefrom, and plaintiff proceeded to alight as quickly as she reasonably could, but when the defendant, by its conductor, knew or by the exercise of ordinary care might have known that plaintiff was then and there in the act of alighting from the car and had not fully alighted therefrom, defendant negligently and carelessly caused the car to move forward with a sudden and unusual jerk, and thereby negligently caused plaintiff to be precipitated from the rear step of the car upon the ground or pavement, and to be injured, describing the injuries as injuries to the bones, muscles, tendons, nerves, membranes, and skin in and about the hip joint and thigh, the left arm cut, etc., plaintiff's nervous system greatly and permanently shocked and debilitated and plaintiff so badly injured by the shock to her nervous system and injured in and about her womb that by reason thereof, being then pregnant, she was caused to suffer a miscarriage. Plaintiff further charges that by reason of the injuries she has suffered, is still suffering and will continue to suffer during the rest of her life, great bodily pain and mental anguish, great pain and numbness of her left hip and thigh, from an impairment of the sense of sight, from a partial loss of the sense of touch, from vertigo and dizziness, from melancholia, from an impairment of the sense of hearing, and from traumatic neurasthenia. Damages in the sum of $5,000, with costs of the action, were prayed. The answer admits the ownership and operation of the car by defendant, upon which it is alleged in this petition that plaintiff was a passenger, and denies each and every other allegation in the petition.

At the trial before the court and jury, plaintiff, a young married woman, 23 years of age, testified substantially, that on the day named she boarded a north-bound Jefferson avenue car at Park avenue, in the city of St. Louis, intending to transfer to an east-bound Olive street car at Jefferson avenue and Olive street; her destination being Ninth and Olive streets. She took her seat about the center of the car, paid her fare, and obtained a transfer check for a passage on the Olive street line. When the car was somewhere in the block between Pine and Olive streets, the conductor announced Olive street as the next stop. Immediately upon this announcement, she rang the signal bell to advise the conductor of her desire to alight at Olive street. A few minutes after she rang the bell, the car was stopped, after which she arose from her seat and proceeded with reasonable haste to the rear platform to alight. As she passed out of the rear door onto the platform, she saw the conductor standing on the platform, facing her, but doing nothing. She stepped down onto the step of the platform to alight, and, while standing with one foot on the step and the other ready to step onto the pavement, the car was started forward with a jerk, throwing her to the pavement and injuring her in her left side, hip, shoulder, and arm. When she got up, her hip was hurting her, her arm was bruised, and her finger bleeding. Her hip has continued to pain her since the injury. She suffered an injury to the womb, and on the following Monday she suffered a miscarriage. After she got up from her fall, she went into the office of a physician at the corner of the streets named, cleaned the dirt from her clothes, and washed the blood from her hand, stayed in the doctor's office a short time, then went to meet her aunt, according to appointment, and together they went to a matinée at a theater near Ninth and Olive streets. After the matinée was over, she returned to her home and went to bed. That night she suffered pains in her hip, back, and stomach; stayed in bed the two following days, and on Sunday morning, the third day, being afflicted with an internal discharge, she sent for the physician who had first attended her. He made an examination and returned Monday with another physician, and performed an abortion upon her in order to relieve her. Neither this physician nor his associate ever returned to examine her or treat her after performing this operation, nor did any other physician attend her while she was confined at this time. She took medicine brought to her by her husband from the physician during the remainder of the time she and her husband continued to live in Madison, Ill., where they resided at the time of her trip to St. Louis. She remained in bed about 10 days after the surgical operation, and was then able to get up and around. In about three weeks after the accident she and her husband moved over to the Missouri side of the river to live, and since then she has had the same physician who first...