Moss v. Wells

• Decision Date: 05 March 1923
• Docket Number: No. 23119.,23119.
• Citation: 249 S.W. 411
• Parties: MOSS v. WELLS.
• Court: Missouri Supreme Court

249 S.W. 411

MOSS v. WELLS.

No. 23119.

Supreme Court of Missouri, Division No. 1.

March 5, 1923.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Action by Tillie Moss against Rolla Wells, receiver of United Railways Company of St. Louis. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Harry P. Rosecan and Earl M. Pirkey, both of St. Louis, for appellant.

Charles W. Bates, T. E. Francis, and W. H. Woodward, all of St. Louis, for respondent.

SMALL, C. I.

Suit for personal injury on the ground, alleged in the petition, that plaintiff was injured at Eighteenth and Carr streets in the city of St. Louis by being thrown from defendant's street car upon which she was a passenger, while she was endeavoring to alight therefrom, after it had stopped in response to her signal to stop at Eighteenth street, by reason of the negligence of defendant's servants "suddenly, and without warning to plaintiff, starting said car forward," and "before plaintiff had a reasonable time to alight," and "thereby throwing plaintiff " violently to the ground and injuring her."

The answer was a general denial, with the admission that defendant was duly appointed receiver, and, as such, was in charge of the property of the United Railways Company of St. Louis.

The plaintiff testified: That she desired to stop at Twentieth street. That she rang the bell for the conductor to stop there, but he failed to do so. Then she rang the hell for him to stop at Nineteenth street, which he also failed to do. (On motion of defendant, this testimony was stricken from the record.) Plaintiff then testified: That as she approached Eighteenth street, she again rang the bell, and the car stopped at the proper place on Eighteenth street to allow her to get off. That she stepped safely from the platform of the car to the step leading to the street, but as she was in the act of alighting from the step to the ground, and before her foot reached the ground, the car suddenly started rapidly forward without warning and threw her to the pavement and injured her.

As to the injuries she received, she testified:

"My leg, arm, head, heart, and stomach were injured—left leg between knee and ankle; head and heart were bruised; had a miscarriage two days afterwards at 1 o'clock at night; doctor came the next morning at 7 o'clock; headaches in forehead; fell in a faint and was carried to a drug store at the corner of Eighteenth and Carr streets where 2 opened my eyes and looked around."

As to plaintiff's injuries, her physician, Dr. Bassman, testified:

Left leg bruised from knee to ankle; left arm and shoulder blade bruised; severe headache; bruised in the back of the lobar (lumbar?) region; pain in abdomen around pelvic region and from back to front. Was not present when any miscarriage occurred; got there in the morning at 7:30 o'clock. Plaintiff told witness she had a miscarriage, and he examined her and found evidence of it having occurred. She had varicose veins before injury, but they were mild in form; and after injury in left leg they were more extended. She also complained of nervousness. Did not report miscarriage to vital statistics department of board of health. Witness did not deliver miscarriage; was supposed to report when he delivered it. "I know we have to report a miscarriage when we deliver it—but if any one comes for examination, we don't have to report it, in my opinion."

Plaintiff's 15 year old son testified:

He was on car with plaintiff. She rang bell to stop at Twentieth and Nineteenth without any response from the trainmen. (There was no objection to the testimony, and it was not stricken out.) Witness did not see details of the accident at the time his mother was stepping off and fell to the pavement. He ran immediately afterwards to her.

Defendant's evidence tended to show: That plaintiff was not thrown off by the sudden starting of the car while she was in the act of alighting, but that the car was stationary when she stepped to the ground. Plaintiff was a large, heavy woman. The conductor testified that her "ankle turned under," as she stepped on the ground, and "she fell forward." "She fell flat with her hands on the ground." That the car was crowded, and witness was trying to make best possible time, but "we give everybody a chance to get off." The plaintiff did not go to him on the back platform and complain, because he had not stopped at Nineteenth street. Plaintiff's counsel then asked witness (the conductor) on cross-examination: "Didn't she come up to you on the, back platform and complain because you hadn't stopped at Twentieth street and because you hadn't stopped at Nineteenth street? Didn't she say something to you?" Defendant's counsel objected to the question as immaterial, and the court sustained the objection. Plaintiff's counsel thereupon offered to prove by witness that plaintiff did complain to him on the back platform because he did not stop at Twentieth or Nineteenth street. Offer rejected. The conductor further testified: Did not see ankle turn; it showed itself that it turned, because there was dirt on side of her shoe. She did not fall on her side; she fell over like this and went forward; one ankle turned, and that threw her straight forward.

During the trial, the following colloquy took place between counsel:

"Mr. Woodward: Defendant will admit that the streets mentioned in the petition are public streets of the city of St. Louis, state of Missouri, and that the street car mentioned in the petition and which will be referred to in this case was owned and operated by Rolla Wells, receiver of the United Railways Company, in the city of St. Louis.

"Mr. Pirkey: And this street car in question was in charge of the motorman and conductor for the receiver, Rolla Wells.

"Mr. Woodward: We will so admit.

"Mr. Pirkey: And that the street railway lines involved in this case, at the time, were used for the purpose of carrying passengers for hire in the city of St. Louis.

"Mr. Woodward: We will admit that.

"Mr. Pirkey: And that Carr street and the points involved in this case are open public streets in the city of St. Louis, and that Carr street runs east and west and Eighteenth street runs north and south.

"Mr. Woodward: I will admit that."

The court, among others, gave the following instructions for defendant:

"(5) The defendant is not an insurer of its passengers. That is to say, the mere fact that plaintiff was injured is absolutely no evidence of negligence.

"(6) The court instructs you as a matter of law that physician to whose knowledge comes the fact that a patient has suffered a miscarriage is required to report such fact to the board of health."

The court also gave of its own motion the following instruction:

"(8) You are further instructed that opening statements made by counsel on either side of matters they expect to prove and remarks made by them during the argument of any question before the court are addressed to the Court only and should have no influence whatever upon the jurors in the consideration of their verdict. Remarks of counsel for the plaintiff or for the defendant, addressed to the court or addressed to each other, are not evidence and are not to be considered as evidence by the jurors.

"You will also, in arriving at a verdict, disregard all questions directed by counsel to witness to which the court has sustained objections, and all testimony of witnesses objected to and to which the court has sustained objections, and also all testimony which the court has ordered stricken out of the record."

The jury found a verdict for defendant, and plaintiff duly appealed to this court.

II. Appellant's contention that respondent's instruction No. 6 is erroneous, because it told the jury that "the mere fact that plaintiff was injured is absolutely no evidence of negligence," is not tenable. The argument is that while such an instruction may not be error in some cases, it was error in this case, because the character of the injury, itself, as testified to by plaintiff and her physician, tended to show that it was caused by defendant's negligence. Orris v. C., R. I. & P. Ry. Co., 279 Mo. 1, 214 S. W. 124, is cited in support of that contention. In that case, such a clause in an instruction for defendant was held erroneous, because the injury, itself, as testified to by the plaintiff, tended to prove defendant's negligence as well as the injury sustained. In that case, plaintiff was injured by reason of a hot or burning cinder escaping from defendant's engine and striking plaintiff in the left eye. The negligence charged was that the netting on the engine to prevent the escape of cinders from the smokestack was defective and allowed unusually large hot cinders to escape, which struck plaintiff in the left eye and destroyed it. The court says (279 Mo. 10, 214 S. W. 126) that plaintiff himself (who was an expert fireman) "testifies to the size of the cinder which struck him, and says that a cinder of that size could not have passed through the mesh of an arrester as used upon that class of engine, if the arrester had been in good condition." So that, the manner and character of plaintiff's injury tended to show that it was inflicted by the defendant's negligence in having a defective cinder or spark' arrester. In that case, the court recognizes that ordinarily it is not error to tell the jury that the mere fact of injury is no evidence of defendan...