Parlon v. Wells

• Decision Date: 18 May 1929
• Citation: 17 S.W.2d 528,322 Mo. 1001
• Parties: Ida Parlon, Appellant, v. Rolla Wells, Receiver of United Railways Company
• Court: Missouri Supreme Court

17 S.W.2d 528

322 Mo. 1001

Ida Parlon, Appellant, v. Rolla Wells, Receiver of United Railways Company

Supreme Court of Missouri

May 18, 1929

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Affirmed.

Wilbur C. Schwartz for appellant.

(1) The court erred in overruling plaintiff's challenge for cause of juror Young. Theobald v. Transit Co., 191 Mo 395; Billmeyer v. Transit Co., 108 Mo.App. 6; Carroll v. U. Rys. Co., 157 Mo.App. 247; Heidbrink v. U. Rys. Co., 133 Mo.App. 40. (2) The court erred in giving defendant's Instruction 1. (a) Said instruction erroneously states the issues made by the pleadings and the evidence and narrows the issues. (b) Said instruction limits the plaintiff's right to recover to the fact that the car started forward while she was in the act of stepping from the step to the street. Rooker v Railway Co., 204 S.W. 558. (c) Said instruction is ambiguous and misleading. Rooker v. Railway Co., 204 S.W. 558.

T. E. Francis and B. G. Carpenter for respondent.

(1) The trial court did not err in overruling plaintiff's challenge for cause of juror Young. Ruschenberg v. Electric Railroad Co., 161 Mo. 70; McCarthy v. Ry. Co., 92 Mo. 536; State v. Rasco, 239 Mo. 535; Williams v. Fleming, 284 S.W. 794; McManama v. U. Rys. Co., 175 Mo.App. 43. (2) The trial court did not err in giving defendant's Instruction 1. Plaintiff did not submit any instructions on the merits. Defendant's instruction clearly and truly submitted the issues framed by the pleadings and proof. Rooker v. Railway, 204 S.W. 556.

Seddon, C. Lindsay and Ellison, CC., concur.

OPINION

SEDDON

Plaintiff seeks recovery of damages in the sum of $ 10,000 for personal injuries alleged to have been suffered by her on April 10, 1923, and to have been caused by the negligent starting of a northbound street car on defendant's Jefferson Avenue street-car line in the city of St. Louis, upon which car plaintiff was a passenger, while plaintiff was alighting from the front platform of said street car, and before she had a reasonable time to alight therefrom, and while she was standing on the step of the front platform of said street car. The substantive averments of plaintiff's petition are as follows:

"Plaintiff further states that on or about the tenth day of April, 1923 she boarded and got upon a northbound street car then and there owned, run and operated by the defendant and called a Jefferson Avenue car, with the consent of the defendant and his servant and conductor, and paid her fare to said conductor in charge of said car, and was being transported as a passenger thereon and was accepted by the defendant and his servant and conductor in charge of and operating said car as a passenger thereon, and thereby became and was a passenger on said street car when she was injured as hereinafter stated.

"Plaintiff further states that after she had boarded and gotten upon said street car and while she was a passenger thereon she gave a signal to the conductor and motorman in charge of said street car to stop said street car at Eads Avenue, and that said street car was stopped at Eads Avenue for that purpose, and while she was alighting from the front platform of said street car and before she had a reasonable time to alight from said street car and while she was standing on the step of the front platform of said street car and before she had reached a place of safety on the street, the defendant then and there negligently caused and permitted the street car on which she was a passenger to be suddenly started, whereby she was injured."

The answer is a general denial of the averments of the petition.

A trial of plaintiff's action resulted in a unanimous verdict of the jury in favor of defendant. After due and timely procedural steps, plaintiff was allowed an appeal to this court from the judgment entered upon the verdict.

The plaintiff testified, in substance, that on the afternoon of April 10, 1923, she was a passenger for hire upon a street car (admitted by defendant to have been then operated by defendant's servants and agents) northbound upon defendant's Jefferson Avenue car line; that she gave a signal, by the ringing of a bell, that she desired to get off the car at the customary stopping place at Eads Avenue; that she then walked to the front end of the car; that the motorman was talking to a man who was sitting on the sand box; that the car was stopped and the front door was opened; that she caught hold of the handrail of the front door and stepped down with her left foot, and that the car started and threw her headlong on the flat of her back on the concrete pavement of Jefferson Avenue; that the front platform of the car was an enclosed vestibule; that she was getting off the car in the usual manner, and, before she alighted on the street, the car started and threw her; and that no part of her body, and neither of her feet, was on the ground when she was thrown by the starting of the car.

Upon cross-examination, plaintiff testified: "Q. When you started to alight from this street car, you say you took hold of the handrail with your right hand? A. Yes, sir. Q. That is the handrail to the rear of the front door? A. Yes, sir. Q. To your right side, in other words, as you faced the outside of the car? A. Yes, sir. Q. To leave? You took hold of that with your right hand? This was a northbound car, was it? A. Yes, sir. Q. Then you put your left foot down on the step, is that right? A. Yes, sir. Q. Now, where was your right foot? A. On the top landing of the car. Q. I see. Your right foot was on the top landing and you put your left foot down on the step? A. Yes, sir. Q. And you say at that moment the car started? A. Yes, sir. Q. You were then facing to the rear were you? A. I was facing to the east to get off. Q. Well, when you took hold of this handrail of a northbound car, with your right hand, put your left foot down on the step and left your right up on the upper platform, that brought you around facing to the rear, didn't it? A. No, I was looking down to where I stepped. Q. Well, did you step straight out? A. I stepped straight down on the step. Q. Yes. And didn't that swing your body so that you were facing to the rear of the car instead of to the front? A. I wouldn't know how it would swing my body. It swung my body this way and threw me to the street. Q. Yes. Is that the ordinary way that you get off of street cars, facing to the rear instead of to the front? A. I never faced to the rear when I got off. I was forced by the force of the motion of the car, swung my body. . . . Q. How far did this car move when it started up, as you say? A. When it started up? Q. Yes. A. I do not know because I lay there motionless. Q. Well, you say you saw the motorman get out of the front platform and come to your assistance? A. No, he just picked me up. I don't know that he got off the car; I didn't see him. I lay there; I couldn't move a muscle. Q. Well, were you lying near the center of the car, or near the rear door, or where were you? A. I was lying with my head to the south. Q. Head to the south? A. Yes. Q. As a matter of fact, weren't you right at the front door of the car when they picked you up? A. I was thrown -- Q. Answer my question, weren't you right at the front door of that car when you were picked up? A. Well, I was right -- the motorman led me to the front end. Q. How far did you have to walk? A. I couldn't say. Q. You have no idea? A. I was in a dazed condition and I just couldn't hardly move. The motorman helped me on the car. Q. You were dazed, you say? A. I was dazed, yes. Q. Did you know what you were doing? A. I just knew what was going on, but I couldn't say how far away I was from the front step. Q. I want to ask you this question: Isn't it a fact that when you got to your seat you were immediately east of the front door of that car, and that the only step you had to take and get on that car and board it at the front entrance were two or three steps directly west and right into the front door of that car? A. All I recollect is that the motorman led me to the step."

The defendant adduced evidence tending to show that the motorman stopped the street car, in response to plaintiff's signal, and that, after the car had stopped, plaintiff stepped to the street in safety, and, in walking away from the car, plaintiff stepped on a manhole cover in the street, slipped and fell, and that, from and after the time the car was stopped, the car never moved again until after plaintiff had fallen and had been assisted back onto the car.

In rebuttal, plaintiff adduced evidence tending to show that the manhole cover was located some considerable distance from the place where plaintiff was thrown upon the street, and that she was not thrown or injured by stepping or slipping upon the manhole cover.

Plaintiff submitted her case solely upon an instruction on the measure of damages, and requested the giving of no instruction presenting and submitting her theory of recovery, or of defendant's negligence. At defendant's request, the court gave an instruction, which presently will be quoted and discussed herein as a ground of error assigned by appellant.

I. Appellant assigns error in the refusal of the trial court to sustain and allow plaintiff's challenge of a venireman, one Young, for cause. It appears from the record herein that, upon voir dire examination, the venireman Young, in response to certain questions touching his qualifications and competency as a juror propounded by counsel for the respective parties, stated that he recently had compromised a damage suit, and, knowing the facts in that suit and the deposition the plaintiff therein had given, he "was afraid" that he had a prejudice against damage suits, and...