Mulderig v. Wells

• Decision Date: 08 January 1924
• Docket Number: No. 18368.,18368.
• Citation: 257 S.W. 1060
• Parties: MULDERIG v. WELLS.
• Court: Missouri Court of Appeals

257 S.W. 1060

MULDERIG v. WELLS.

No. 18368.

St. Louis Court of Appeals. Missouri.

January 8, 1924.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

Action by Anna Mulderig against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and J. F. Evans, all of St. Louis, for appellant.

Harry G. Whelan and Kinealy & Kinealy, all of St. Louis, for respondent.

RECKER, J.

Defendant appeals from a judgment in favor of plaintiff for $2,500 in an action for damages for personal injuries. Plaintiff's petition alleges:

That while she was riding as a passenger on one of defendant's street cars in the city of St. Louis, and while the car was proceeding westwardly along Franklin avenue, "and when it bad reached a point thereon between Nineteenth and Twentieth streets the body of the car, through the negligence of the defendant, his servants and employés, suddenly, violently, and in an unusual manner, lurched, careened, swayed, and tipped to one side, and then back again to its proper place upon the trucks of the car; that by reason of such movement of the body of the car plaintiff was forced and thrown to one side, and thence back again, in such a manner as to strike the seat and back thereof with great force and violence, causing her to experience intense pain through her body, and subjected her whole person and nervous system to a severe and violent shock."

Defendant's answer was a general

The refusing to give an instruction in the nature of a demurrer, offered by the defendant at the close of the whole case, is here urged as error on the ground that plaintiff brought her suit on the theory that her injuries were the result of a violent, sudden, and unusual motion of defendant's car, and her evidence in support is not sufficient to sustain this theory. A careful reading of the record in this case, however. satisfies us that plaintiff made out a case for the jury. Plaintiff herself testified:

That on the day she met with her alleged injuries, in the month of May, 1920, she was 36 years of age; that she boarded a Wellston car at Sixth and Morgan streets, and sat in a seat which was the fourth from the rear on the south or left-hand side of the car, next to the aisle, holding her 3 year old daughter in her lap. A male passenger was seated next to the window in the same scat with her; that when the car reached a point on Franklin avenue between Nineteenth and Twentieth streets the car gave a sudden lurch and made "kind of a grinding noise"; that when the car gave the "violent lurch it went out as though it was going to fall aver on the track on the south side, * * * and then it came back with a violent lurch and settled down, and it threw me. I went out as the car went out over toward the north. I had my baby, holding her around the waist, and we both went out over onto this man, and then as the car came back I came down on the seat, and struck the point of the seat as I went down on this violent lurch, with any back against the back of the seat. * * * There was a jerk when the car went out; when it careened out to the track on the south. * * * It lurched out to the other track, the east-bound track; * * * then just lurched back again, settled back on the track, straightened up."

In response to the question as to the manner in which the car righted itself, she answered:

"Kind of a grinding noise, and then an awful lurch. * * * I experienced an awful pain in my whole body right up to my head, because my body struck the point on the extreme end of my body. * * * I felt nauseated and nervous and all; the baby had come down with violent force right on my stomach and pressed against me. * * * Then the motorman and conductor, they all got out, and there was a policeman—I don't know whether he was on the car—but they were all around the car, and looked at it, and then they all got back on the car after about 10 or 15 minutes, and the car dragged along three or four blocks, maybe five, and they stopped again, and got out, and looked at it, and then they went on, just dragged real slow out to the Easton avenue car sheds."

On cross-examination, plaintiff testified:

That the lurch of the car raised her "right up from the seat, I would judge about a foot or 15 inches, and back"; that the lurch threw her across the lap of the young man seated next to her. "There was a young lady standing up alongside of me. She reached out and grabbed my shoulder to try to pull me back.

"Q. You say, as you were thrown first to the south, and then suddenly and violently thrown back into your seat? A. Yes, sir.

"Q. Now, as you came back into this seat, you say you were struck at your rectum by the front right-hand corner of the seat? A. Yes, sir.

"Q. What, if anything, kept you from going into the aisle? A. This young lady that was up by me.

"Q. She kept you from going out? A. There were other people standing in the aisle, too." "Q. Now, when this car came back with such a violent jerk as to throw you back to the right, what, if anything, did this young lady do? A. She reached out and grabbed the seat in front of me, and reached and grabbed my shoulder to steady herself.".

Catherine Koch, a witness for plaintiff, testified:

That she was on the street car at the time the plaintiff met with her alleged injuries; that between Nineteenth and Twentieth streets the rear end of the car "jerked out toward the south side of the street, and at the same moment almost it lurched right down and settled. As it went down, it gave a terrific jerk, a terrible jerk. * * * When the car gave the jar, of course, the aisle was all crowded. Everybody was thrown in the back when the car lurched out that way, and she was thrown out toward the window. She had a child sitting on her lap, and the car leveled back again and settled, and she was thrown to the edge of the seat. She was sitting right on the corner, and the jar was big enough that it caused her to go right straight down on this corner of the edge of the seat.

"Q. These jerks you describe, to the south and back again—were those jerks ordinary jerks? A. Very sudden jerks; it looked like something had broke underneath.

"Q. Were these jerks unusual or ordinary? A. Unusual jerks."

This witness further testified:

That the lurch of the car had "thrown her over that way toward the window. * * *

"Q. You weren't lifted out of your seat any foot and three inches, were you? A. We all got a jerk; everybody in the car got a jerk upwards. It takes a pretty good jerk to knock me up. * * *

"Q. This accident wasn't severe enough, or this jolt wasn't severe enough, to cause you to hang on for yourself and disregard everything else? A. I was about grabbing the front part of the seat when the jolt came, and those standing in the aisle grabbed.

"Q. Were there any people in the aisle thrown? A. Well, yes, sir. They were knocked forward; all the people in the aisle that was on the car.

"Q. Knocked forward, do you mean by that? A. Some went that way (indicating), and others standing up this way (indicating) were thrown that way. Those facing south were thrown toward the south of the aisle.

"Q. None of them were thrown down into the seats. A. Everybody got thrown against the edge of the car, but they kept from being thrown to the floor by hanging on the seats."

For the defendant, Otto L. Himmelman testified:

That he was the conductor in the employ of the defendant in charge of the car in question at the time plaintiff met with her alleged injuries; that as the car was crossing the street car tracks at Eighteenth street something snapped like a crack under the car, and that the car was then stopped to see what the trouble was. On examining the car, "we found that underneath the last trucks there was something broke under there, looked like the car sagged a little bit to the side; * * * about four inches, I guess."

He further testified:

That the floor of the car on the left-hand side, as far as the second or third seat in the rear, was raised about four inches as a result of the break, and the second and third seats on the left-hand side toward the rear were tilted to the...