Musick v. United Rys. Co. of St. Louis

• Decision Date: 24 January 1911
• Citation: 155 Mo. App. 64,134 S.W. 31
• Parties: MUSICK v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

134 S.W. 31

155 Mo. A. 64

MUSICK v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

January 24, 1911.

Rehearing Denied February 7, 1911.

1. CARRIERS (§ 303)—CARRIAGE OF PASSENGERS—DUTY IN SETTING DOWN PASSENGERS —SUDDEN START.

Where a street car on the signal of a passenger slows down at a customary stopping place, and the passenger prepares to alight, it is negligence for those in charge of the car to suddenly start it just before making the stop.

2. CARRIERS (§ 315)—CARRIAGE OF PASSENGERS —PLEADING—VARIANCE.

Where a petition alleged that the plaintiff, a young girl, was a passenger on one of defendant's street cars, and, upon her signal to stop, the car was brought to a slow speed, and she went from her seat to the rear platform holding on to the rail, and that, while standing in apparent safety expecting to alight, those in charge negligently started the car with a violent jerk, throwing her to the ground, proof that the start was made in a sudden and violent manner did not prove a different cause of action from the premature starting alleged, but merely showed the manner of the breach of duty.

3. EVIDENCE (§ 471)—OPINION EVIDENCE— CONCLUSIONS.

Where one testified that the sudden start of a car "jerked me from the car into the gutter," it was not a conclusion, but a statement of a motion and its effect.

4. APPEAL AND ERROR (§ 1047)—REVIEW— HARMLESS ERROR—ADMISSION OF EVIDENCE.

In an action for personal injuries, when the plaintiff testified that one claiming to be the defendant's physician had said it was a bad sprain, and the court refused to strike out the statement as hearsay and an unauthorized admission, the ruling was harmless, where other undisputed evidence clearly showed that such injuries were suffered.

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

Action by Helva Musick, an infant, by George Musick, next friend, against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals Affirmed.

Boyle & Priest and Glendy B. Arnold, for appellant. S. C. Rogers and Rogers & Sacks, for respondent.

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 southbound 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.

1. 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...