Paul v. St. Louis Public Service Co.

• Decision Date: 08 March 1932
• Docket Number: No. 21778.,21778.
• Citation: 46 S.W.2d 910
• Parties: PAUL v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

46 S.W.2d 910

PAUL v. ST. LOUIS PUBLIC SERVICE CO.

No. 21778.

St. Louis Court of Appeals. Missouri.

March 8, 1932.

Appeal from St. Louis Circuit Court; Arthur H. Bader, Judge.

"Not to be officially published."

Action by Otto C. Paul against the St. Louis Public Service Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

Jesse T. Friday, of St. Louis, for appellant.

T. E. Francis and B. G. Carpenter, both of St. Louis, for respondent.

HAID, P. J.

This is an appeal from a judgment for defendant in a personal injury action. The petition alleges that, while plaintiff was a passenger on one of defendant's street cars standing in the aisle thereof, the car was caused carelessly and negligently to start forward in an extremely unusual, violent, and extraordinary manner, causing plaintiff to be violently thrown to the floor of the aisle of the car.

The plaintiff testified that on the morning of May 13, 1929, he boarded defendant's east-bound Olive-Delmar car at Twelfth and Olive streets in the city of St. Louis, Mo., and that he sat in a seat which ran lengthwise with the length of the street car on the north or left side of said street car between the front end thereof and the middle exit door. Some rain fell that morning, and the floor of the car was wet. When the street car arrived at its usual stopping place for the discharge of passengers at the intersection of Seventh and Olive, and after the last passenger who desired to leave the car at said point had alighted therefrom, the plaintiff arose from his seat and started to walk in the aisle of said car toward the conductor's booth, and while he was stepping forward with his left foot, and before he had an opportunity to complete said step, the car started forward with an unusual and violent jerk, so that plaintiff was thrown forward in such a manner that his left foot slid out in front of him, causing him to fall down on his right knee with his left leg extended in front of him, thereby causing him to fall in such a manner as to do the "split," causing the injuries of which the plaintiff complains.

Plaintiff was corroborated in his evidence by two witnesses, passengers on the car, one of whom, on cross-examination, admitted that he had made a written statement to the defendant that he recalled that the car had an unusually slow trip from Twelfth street east due to the heavy traffic and that it was raining that morning, and that he noticed that the floor was wet; he would not state that there was a jerk just at the time the man fell or not.

On behalf of defendant, testimony was to the effect that it was raining, and passengers, as they boarded the car, brought moisture into the car and onto the floor thereof; that the car had left Seventh street approaching Sixth and was moving along at a moderate rate of speed when plaintiff left his seat, and, while approaching the conductor's booth, his one foot slipped and he dropped to the floor on the other knee; that there was no sudden, violent, or unusual motion of the car.

The court overruled defendant's demurrer to the evidence, and the case was submitted to the jury upon instructions.

The sole complaint made here is that the court erred in giving instruction No. 4 at the request of the defendant.

The court gave the following instruction at the instance of the plaintiff:

"The Court instructs the jury that if you believe and find from the evidence that on the 13th day of May, 1929, the defendant was in possession of and operating, through its agents and servants, the Olive line street car, referred to in the evidence, as a common carrier of passengers for hire; and that at the time in question the plaintiff was a passenger upon said street car, then you are instructed the obligation of the defendant then arose to exercise the highest degree of care for plaintiff's safety, and any failure of the defendant to exercise such highest degree of care would constitute negligence upon defendant's part in connection with such carriage, and defendant would be responsible to plaintiff for any injuries directly and proximately resulting from such negligence, if any.

"And if you further believe and find from the evidence, while plaintiff was a passenger upon said street car, if you so find, that said street car came to a stop at its usual stopping place to discharge passengers at the intersection of Olive street and Seventh street, in the City of St. Louis, Missouri; and while plaintiff was walking in the aisle of said street car, if you so find, that said street car was started in motion, at the place aforesaid, with an unusual and violent jerk; and that as a direct result thereof the plaintiff was thrown to the floor of said car, as described in the evidence; and that plaintiff was injured thereby, as mentioned in the evidence, the presumption arises that the starting in motion of said street car with such unusual and violent jerk, if you so find, was occasioned by some negligence on the part of the defendant, and the burden of proof in such case is cast upon the defendant to rebut said presumption of negligence and to establish that such starting in motion of said street car with such unusual and violent jerk, if any, was caused through no negligence on defendant's part and could not have...