Appeal from St. Louis Circuit Court, Division No. 13; James E. McLaughlin, Judge.
Suit by Margaret Noe against Guy A. Thompson, trustee for the Missouri Pacific Railroad Company, a corporation, debtor, to recover for damages sustained while a train passenger. Judgment for defendant, and plaintiff appeals.
Judgment affirmed.
Paul P. Hoegen, of St. Louis, for appellant.
Thomas J. Cole, of St. Louis, for respondent.
WESTHUES, Commissioner.
We adopt appellant's statement of the case as our own. It reads:
"This appeal is from a verdict and judgment in favor of defendant and a ruling of the Circuit Court of the City of St. Louis, Missouri, denying plaintiff's motion for a new trial. Damages are asked for in the petition in the sum of $15,000.00.
"This suit was commenced by the filing of a petition on the part of appellant claiming damages on account of personal injuries sustained by plaintiff on April 6, 1941, while a passenger on defendant's train, and while attempting to alight at her destination. The petition alleged general negligence, relying upon the doctrine of res ipsa loquitur.
"The answer was a general denial.
"Plaintiff's evidence tended to show that plaintiff, on boarding defendant's train at Kansas City, Missouri, had told the conductor to let her off at Tower Grove Station; that the train stopped at Tower Grove Station to discharge passengers; that while it was so stopped plaintiff immediately attempted to leave said train, carrying her 2-year-old child, and while on the step leading from the platform of the coach she saw that the train was moving; that she called the train porter's attention to the movement of the train, whereupon the porter signaled the engineer and the train came to an abrupt stop, with a sudden lurch, causing plaintiff to be thrown backward against the platform; that she sustained resulting bodily injuries
including bruising and discoloration of the back, sacroiliac injuries and injuries to the nerves, from which she still suffered at the time of the trial.
"Defendant's evidence tended to show that at the time in question the train had stopped at Tower Grove Station, discharged passengers and resumed motion; that after the train had moved the plaintiff, with her child, and Miss Tesson, her sister, appeared in the vestibule of the coach and asked to be allowed to alight; that plaintiff had given no previous indication of her intention to get off at Tower Grove Station; that the signal was given the engineer and that the train was again halted, coming to a standstill in a smooth, gradual stop, without any jerk or jar, and that neither the plaintiff nor her sister was thrown and that plaintiff was not injured.
"Instructions for both the plaintiff and the defendant submitted the case to the jury on the basis of the application of the doctrine of res ipsa loquitur."
Before discussing appellant's assignment of error, we desire to say that we are not holding that this is a res ipsa loquitur case.
The only assignment of error pertains to the giving of respondent's instruction number three, which reads as follows: "The Court instructs the jury that the burden of proof is on plaintiff to show by the greater weight of the evidence that she was injured by the negligence of the defendant. You should not find that the defendant was negligent from the mere fact of the occurrence shown by plaintiff's evidence if you find and believe from...
