Musick v. United Railways Company of St. Louis

• Decision Date: 24 January 1911
• Citation: 134 S.W. 31,155 Mo.App. 64
• Parties: HELVA MUSICK, an infant, by GEORGE MUSICK, next friend, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Court: Missouri Court of Appeals

134 S.W. 31

155 Mo.App. 64

HELVA MUSICK, an infant, by GEORGE MUSICK, next friend, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Court of Appeals of Missouri, St. Louis

January 24, 1911

Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.

Judgment affirmed.

Glendy B. Arnold for appellant; Boyle & Priest of counsel.

(1) The court erred in refusing defendant's demurrer to the evidence offered at the close of plaintiff's evidence in chief and its peremptory instruction offered at the close of the whole case. Plaintiff not being in a dangerous position a mere start of the car was not negligence. Waldhier v Railroad, 71 Mo. 514; Saxton v. Railroad, 98 Mo.App. 494; Pryor v. Railroad, 85 Mo.App. 367. (2) Plaintiff's first instruction is erroneous because it submits a different cause of action from that charged by the petition, and is not supported by any evidence of the negligence therein submitted. Plaintiff cannot sue on one cause of action and recover on another. Waldhier v. Railroad, 71 Mo. 514; Heinzle v. Railroad, 182 Mo. 528; Bond v. Railroad, 110 Mo.App. 131. (3) Plaintiff's fourth instruction on the measure of damages is error because it authorized an award of damages for any permanent injuries plaintiff may have sustained and for any pain of body and mental anguish she will in the future suffer as the result of said injuries without any evidence tending to show that her injuries are permanent or that she would in the future suffer pain of body or mind on account thereof. Wilbur v. Railroad, 110 Mo.App. 689. (4) The court erred in permitting plaintiff to state her conclusion that she was jerked from the car into the street, and that the jerk of the car "was a violent jerk." Hedrick v. Railroad, 195 Mo. 122; Guffy v. Railroad, 53 Mo.App. 466; Portuchek v. Railroad, 101 Mo.App. 55. (5) The court erred in permitting plaintiff to testify to the alleged statement made by defendant's physician to the effect that she sustained a badly sprained ankle. 1 Clark and Skyles, secs. 466, et seq.; Robinson v. Walton, 58 Mo. 380; McDermott v. Railroad, 73 Mo. 516; Adams v. Railroad, 74 Mo. 553; Frye v. Railroad, 200 Mo. 377.

S. C. Rogers for respondent.

(1) The court did not err in refusing defendant's demurrer at the close of plaintiff's case and at the close of the whole case. Schulze v. Railroad, 32 Mo.App. 438; Cobb v. Lindell Ry. Co., 149 Mo. 135; Millar v. St. Louis Transit Co., 215 Mo. 607; Moorman v. Railroad, 105 Mo.App. 711; Cook v. Springfield Traction Co., 129 S.W. 265; Duffy v. St. Louis Transit Co., 104 Mo.App. 235; Parks v. St. Louis Transit Co., 119 Mo.App. 445; Brady v. Springfield Traction Co., 140 Mo.App. 421. (2) Plaintiff's first instruction did not submit a different cause of action from that alleged, and negligence was shown. Nelson v. Met. St. Ry. Co., 113 Mo.App. 702; Schulze v. Railroad, 32 Mo.App. 438; Bond v. Railroad, 122 Mo.App. 217; Bell v. Central Elec. Ry. Co., 125 Mo.App. 666; Murphy v. Met. St. Ry. Co., 125 Mo.App. 269; Hufford v. Met. St. Ry. Co., 130 Mo.App. 642; Gorman v. St. Louis Transit Co., 96 Mo.App. 602. (3) Plaintiff's fourth instruction on the measure of damages was proper as given and under the evidence. Duffy v. St. Louis Transit Co., 104 Mo.App. 235; Hufford v. Met. St. Ry. Co., 130 Mo.App. 644; Cobb v. Lindell Ry. Co., 149 Mo. 135; McCarthy v. St. Louis Transit Co., 108 Mo. 317; Nelson v. Met. St. Ry. Co., 113 Mo.App. 702; Mabrey v. Gravel Road Co., 92 Mo.App. 603; Parker v. St. Louis Transit Co., 108 Mo.App. 469. (4) There was no error in using the word "jerk" nor "violent jerk." State v. Buchler, 103 Mo. 206; Thompson v. City of Poplar Bluff, 124 Mo.App. 439; Schulze v. Railroad, 32 Mo.App. 438. (5) Appellant's counsel waived objection to plaintiff's testimony of appellant's physician's statement, and the motion to strike out was based on no valid ground. Foster v. Railroad, 115 Mo. 183; Johnson & Co. v. Ice & Refrigerating Co., 143 Mo.App. 453. Nor is it sufficient to justify a reversal. McNally v. Met. St. Ry. Co., 129 S.W. 464.

CAULFIELD, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

CAULFIELD, J.

Suit for damages for personal injuries alleged to have resulted from the negligence of defendant. Plaintiff is an infant and appears by next friend duly appointed. The evidence tended to show that on September 16, 1907, plaintiff was a passenger for hire on defendant's south-bound Jefferson Avenue car, and was injured at her destination, the south side of Park avenue, which was a regular stopping place, by the car slowing down almost to a stop, and then, just as she was standing on the platform ready to alight, starting with a violent jerk, and throwing her to the ground.

There was verdict and judgment for the plaintiff for $ 450, from which, after unsuccessfully moving for a new trial, and in arrest of judgment, the defendant has duly appealed to this court. The facts alleged and proved will more clearly appear in the discussion of the points made by defendant.

I. Defendant assigns as error the action of the trial court in refusing to direct a verdict for defendant. Its counsel contends, in effect, that the only negligence charged in the petition being the mere starting of the car, the proof must have shown that plaintiff was in such a position of danger that starting the car at all, even gently and with great care, must have caused her injury; that the proof shows that she was not in a position of danger, and that her injury was due, not to the mere starting of the car, but to the manner of its starting, its starting with a jerk, which he says, was another and distinct cause of action.

We cannot agree with defendant's conclusions. The petition in effect alleged, and the proof showed, that the relation of carrier and passenger existed between the parties; that upon plaintiff's signal, the defendant's employees in charge of the car brought it to a slow speed, as if about to stop at plaintiff's destination, which the car was approaching and which was a regular stopping place; that, induced by their slowing up and apparent intention to stop in order to let her off, the plaintiff arose from her seat and went to the rear platform and stood near the edge of the steps, facing west, holding to an upright hand bar with her right hand. There is no pretense that plaintiff was negligent in so doing. While she was in this position the car got to the regular stopping place, her destination. It had almost stopped. A lady and child standing there ready to get on, stepped aside to allow plaintiff to get off, and she was just about to alight. It was then the duty of defendant to allow plaintiff reasonable time and opportunity to alight in safety. But the petition alleges and the proof shows that at this moment of apparent safety, when plaintiff had every reason to expect the car to quietly subside into a quiet stop so that sh...