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

• Decision Date: 30 December 1910
• Parties: PARKER v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

133 S.W. 137

154 Mo. A. 126

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

St. Louis Court of Appeals. Missouri.

December 30, 1910.

Rehearing Denied January 11, 1911.

1. CARRIERS (§ 303)—PASSENGERS—ALIGHTING—DUTY OF CARRIER.

The stopping of a street car at a usual stopping place is an invitation to alight, and the company's employés are negligent if they thereafter start the car without taking every reasonable precaution to see that passengers are not then alighting.

2. CARRIERS (§ 333)—PASSENGERS—INJURIES —CONTRIBUTORY NEGLIGENCE.

A street car passenger should not attempt to alight when the car is moving, either before it has stopped, or after it has started after it has stopped.

3. APPEAL AND ERROR (§ 1002)—CONFLICTING EVIDENCE—FINDINGS—CONCLUSIVENESS.

A verdict rendered on contradictory evidence is conclusive on appeal as to the questions of fact on which the evidence conflicted.

4. PLEADING (§ 433)—CURE BY VERDICT.

If a petition not demurred to states a good cause of action, however defectively, it is good after verdict.

5. CARRIERS (§ 314)—PASSENGERS—INJURIES —ACTIONS—ALLEGATIONS OF PETITION.

The petition in a street car passenger's action for personal injuries alleged that the conductor signaled the motorman as the car approached a street, and that it had come to a position of rest to discharge passengers, and while plaintiff was alighting, she using due care and diligence, and before she had a reasonable time to alight, the car was carelessly and negligently started forward, throwing plaintiff violently into the street, "which said negligence directly contributed to cause plaintiff's injuries, and by reason of which" she was injured as described, and the petition further alleged the negligent violation of an ordinance requiring motormen on west-bound cars to bring the car to a full stop at the corner on the west side of intersecting streets whenever signaled by the conductor, and requiring the cars to remain stationary long enough to allow passengers to safely alight, which negligence directly contributed to cause plaintiff's injuries. Held, that the petition was not defective, in that it alleged that each negligent act averred contributed to the accident, as the petition need not allege which was the direct or sole cause of the injury in order to make defendant liable.

6. NEGLIGENCE (§ 61)—PROXIMATE CAUSE.

A defendant's negligence need not be the sole proximate cause of injuries to entitle the injured person to recover against him; he being liable if his negligence concurred with that of another to cause the injuries.

7. TRIAL (§ 260)—INSTRUCTIONS—REQUESTS—INSTRUCTIONS ALREADY GIVEN.

Requested instructions, which were covered by instructions already given on the court's own motion, were properly refused.

8. TRIAL (§ 133) — CONDUCT — ACTION OF COURT.

There is no rule of practice or law requiring the court to put in writing remarks made by it in requiring counsel to keep within proper bounds in his argument.

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

Action by Mary E. Parker against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle & Priest and Glendy B. Arnold, for appellant. M. Hartman, for respondent.

REYNOLDS, P. J.

This is an action by plaintiff against the defendant, at the time operating a street car line in the city of St. Louis, for injuries alleged to have been sustained by her on or about the 13th of December, 1907, while she was a passenger on a west-bound Compton avenue car of the defendant. There are two assignments of negligence in the petition—one to the effect that, when the car approached the intersection of Armstrong and Park avenues in the city of St. Louis, the defendant's conductor in charge signaled to the motorman and the car was stopped, "and it had come to a position of rest," for the purpose of discharging passengers at the northwest corner of the intersection of those streets, that being the usual stopping place, that the plaintiff thereupon proceeded to alight from the car while it was stopped, and that while she was in the act of alighting, she using due care and diligence, and before she had a reasonable time or opportunity to alight, defendant's agents in charge of the car carelessly and negligently caused and suffered it to be started suddenly forward, whereby plaintiff was jerked from the car and violently thrown from it to the street, "which said negligence directly contributed to cause plaintiff's injuries, and by reason of which plaintiff was severely and permanently injured," describing the injuries. The second assignment of negligence is bottomed on a violation of an ordinance of the city of St Louis providing that it shall be the duty of every motorman or other servant running any car going westwardly to bring the car to a full stop at the corner on the west side of the intersecting streets whenever requested, signaled, or ordered by the conductor or any passenger on such cars desiring to leave such cars, and that in every instance such cars shall remain stationary for a sufficient length of time to enable such passenger safely to leave such car; it being alleged that the motorman and conductor of the car, unmindful of their duty, negligently and carelessly failed to keep the car stationary at the point of stoppage for a sufficient length of time to enable plaintiff to safely alight from the car, "which negligence directly contributed to cause plaintiff's injuries." By reason of the injuries so sustained through the negligence aforesaid, plaintiff avers that she suffered and will suffer great pain and anguish of body and mind and be forced to expend large sums of money for necessary medical attendance, etc., to her damage, etc., she accordingly praying judgment for $4,500 and costs. The answer was a general denial and a plea of contributory negligence on the part of plaintiff, averring that she had attempted to alight from the moving car before it had come to a stop, and while it was coming to a stop for the purpose of permitting her to alight therefrom. The reply was a general denial. The trial resulted in a verdict of $1,250 for the plaintiff, judgment following, from which, after interposing a motion for a new trial and saving exceptions to that being overruled, defendant has duly perfected an appeal to this court.

Plaintiff was the sole witness in her own behalf as to the facts attendant upon the accident, and the physician who attended her testified as to the nature and extent of her injuries and their probable effect. Plaintiff's mother testified to plaintiff's condition subsequent to and before the accident, but her testimony is unimportant. This was all the testimony offered by plaintiff. Briefly, it may be said that the testimony of plaintiff herself tended to prove that the car in which she was a passenger, she having paid her fare, was crowded. Her destination was the corner of Armstrong and Park avenues, her proper stopping place, she living on Hickory street, the next street north of Park, near Armstrong. A short distance to the east of Armstrong avenue and opening on Park avenue is Benton Place, a private place or street. Both Armstrong and Benton Place end at the north line of Park avenue. As the car was passing Benton Place the conductor called out "Benton Place," whereupon plaintiff rang for the next stop, which would be Armstrong avenue. Before the car got to Armstrong avenue, the conductor, who was in the front part of the car collecting fares, called out "fares," and just as the car was opposite a church between Benton Place and Armstrong avenue plaintiff rang the bell. A gentleman standing in front of her stepped to one side, and opened the door for her to get out. As plaintiff got to the platform or through the front door of the car, the motorman turned around and looked at her as she stepped from the platform to the step of the car and onto the step. The car was "perfectly still" when she got on the step, and she was in the act of stepping down to the street when the car started. She held on with her left hand as long as she possibly could and until her hold broke, when she fell, the car dragging her from three to five feet. The car was then stopped. She was lifted up to her feet by some person, and went across to the sidewalk. Her name was taken by some one, whether the motorman or conductor is not very clear, and a gentleman who was standing on the sidewalk took her to her home on Hickory street where she lived. She asked him for his name and address, but he declined to give either, as he said he did not want any publicity, and she does not seem to have ever met him again. During the course of her cross-examination, she was asked by counsel for the defendant many questions, obviously intended to bring discredit on her (witness') character. To all of them she very emphatically gave negative answers. The physician who attended her testified to the extent of her injuries, and for the length of time he had attended her, and that he had not yet been paid, and to the value of his services. This latter was admitted by the court subject to objection; the court stating that he was in doubt whether the plaintiff, a married woman, could recover for medical and surgical attendance.

On the part of defend...