Rose v. St. Louis Public Service Co.
| Decision Date | 10 November 1947 |
| Docket Number | 40147 |
| Parties | Minnie Rose, Appellant, v. St. Louis Public Service Company, a corporation, Respondent |
| Court | Missouri Supreme Court |
From the Circuit Court of the City of St. Louis, Civil Appeal Judge Williams S. Connor
Affirmed
In an action brought by her to recover $15,000.00 damages for personal injuries alleged to have been sustained by having been thrown from a bus, Minnie Rose appealed from a judgment for the defendant entered upon the adverse verdict of the jury.
The only point raised upon this appeal is the propriety of the action of the trial court in giving to the jury defendant's requested instruction 6. In here determining whether an instruction given at the request of the defendant is supported by the record evidence, we must consider the evidence in the light most favorable to the defendant together with all favorable and reasonable inferences to be drawn therefrom. Rothe v. Hull, 352 Mo. 926, 180 S.W.2d 7, Poague v. Kurn, 346 Mo. 153, 140 S.W.2d 13, 17.
About 10:30 P.M. on September 17, 1945, plaintiff, accompanied by Clarence Uding, a brother of her daughter-in-law, Marie Rose, her daughter-in-law, and her son, Raymond Rose, was preparing to alight from a Kingshighway bus of defendant at the intersection of Kingshighway and Vernon, in St. Louis, Missouri. They alighted in the order just above named. Each of these four testified that they were standing at or near the rear door, one immediately behind the other, waiting to alight. The bus came to its regular stop at that place. The stop was characterized as "hard", "unusual", "violent", "jolty", or "buck stop". Each of the four was holding to some part of the bus. Not any one of the four was thrown down or against the seats or other parts of the bus. Some of the testimony of plaintiff and her three witnesses is confusing, contradictory, and difficult of exact understanding. Portions of their testimony respecting the effect upon them of the movement and stop of the bus apparently was given with gesticulation and demonstration making it difficult to understand from the printed word the exact meaning each witness intended to convey. The jury and the trial court while observing the gesticulation and hearing the frequent use and application of the terms "this way" and "that way" during the taking of the testimony doubtless more easily understood what was intended by each witness to be understood.
While plaintiff and one of her witnesses did at times testify that the unusual motion of the bus caused her to be thrown from the bus, from the record before us the jury could reasonably further find that after plaintiff gave an electric signal of her desire to alight she started walking toward the rear exit door; that the bus came to a stop before she reached the exit door; that plaintiff was in front and that she "was the first one to get off"; that the bus make the regular stop and stopped at the regular stopping place; that plaintiff then went on out of the bus; that her "left foot hit first"; that she landed on her feet, went down on the (right) knee; that her "legs sprung out", and she fell and lay on the pavement just out from and even with the step of the bus. Plaintiff's daughter-in-law, who was third in line to alight, and quite close behind plaintiff, testified that if plaintiff was not thrown off the bus, "she (plaintiff) fell awfully fast"; and that plaintiff might have "stepped from the point where she (plaintiff) was standing (on the inside step of the bus) and just gone down to the concrete with her left foot and her foot gave away".
Plaintiff's petition alleged that while plaintiff was standing in the bus waiting to alight therefrom, the defendant's bus operator "negligently * * * caused said motorbus to come to a sudden, unusual and violent stop, whereby plaintiff was thrown out of said motorbus", etc. Plaintiff's instruction 1 submitted the cause to the jury upon the theory that while plaintiff was waiting to alight and was standing at the rear exit door of the bus, that said motor bus was "caused and permitted * * * to come to a sudden, unusual and violent stop, causing plaintiff to be thrown from and out of said motor bus".
Plaintiff contends that instruction 6 was without factual support in the testimony adduced. Instruction 6 was as follows: "The Court instructs the jury that if you find and believe from the evidence that the bus mentioned in the evidence was stopped at the time plaintiff attempted to alight therefrom, and further find that plaintiff fell as she stepped from said stopped bus and was not thrown from the door thereof by a lurching or jerking of said bus, then you are instructed that plaintiff is not entitled to recover and your verdict must be for the defendant."
We agree with plaintiff's contention that the instruction must be within the evidence. It is, of course, true that an instruction must have factual support in the testimony in the case. State ex rel Central Coal and Coke Company v Ellison, 270 Mo. 645, 195 S.W. 722, State ex rel Shell Petroleum Corp. v. Hostetter, 348 Mo. 841, 156 S.W.2d 673, Rothe v. Hull, 352 Mo. 926, 180 S.W.2d 7. The law upon that subject is not complex. There is no need to unduly extend this opinion with citation or analysis of adjudicated cases. Plain...
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