Rosenzweig v. Wells

• Decision Date: 09 April 1925
• Docket Number: No. 25447.,25447.
• Parties: ROSENZWEIG v. WELLS.
• Court: Missouri Supreme Court

273 S.W. 1071

ROSENZWEIG v. WELLS.

No. 25447.

Supreme Court of Missouri, Division No. 2.

April 9, 1925.

Motion for Rehearing Overruled June 5, 1925.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Action by Clementine Rosenzweig against Rolla Wells, receiver of United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Charles W. Bates, T. E. Francis, and Edward P. Walsh, all of St. Louis, for appellant.

E. H. Wayman, of St. Louis, for respondent.

DAVID E. BLAIR, J.

Action for damages for personal injuries, alleged to have been suffered by plaintiff while she was a passenger upon one of defendant's street cars in the city of St. Louis. From a judgment for plaintiff in the sum of $10,000, defendant has appealed.

While the motion for new trial charged. error in the refusal of the trial court to give to the jury a peremptory instruction to find for defendant at the conclusion of all the evidence, no such assignment of error is made in defendant's brief here. We are satisfied that plaintiff made a case for the jury. This obviates the necessity of making a detailed statement of the facts, except as such facts require statement in connection with our consideration of the assignments of error made here.

On November 23, 1921, plaintiff, with her husband and young son, lived at what was then known as Ednell Hotel, at the southwest corner of Delmar boulevard and Kingshighway in said city. She was a passenger upon an east-bound street car, from which she attempted to alight in front of said hotel at about 5:30 p. m. of that day.

Plaintiff's evidence tended to show that, as the street car approached Kingshighway, she left her seat in the car and went to the rear platform preparatory to alighting, that the conductor opened the door of the car before the car was brought to a standstill, and that said car was stopped with a sudden, violent, and unusual jerk, which threw plaintiff from the platform down upon the steps, with her feet on the pavement, and injured her. Her evidence tended to show that she sustained severe injuries. Plaintiff did not testify at the trial, nor was her deposition taken before said trial, because of alleged physical inability on her part to have her testimony taken.

The evidence offered by defendant tended to show that the street car was brought to a standstill in the usual and ordinary manner, without any sudden, violent, or unusual jerk; that the conductor did not open the door until the car stopped; that, after the car had stopped, the plaintiff took hold of the handrail and stepped down into the street; and that, after she was off the car and had both feet upon the pavement, she sat down suddenly upon the step of the car, for some reason not connected with the operation of the car. In other words, the testimony of defendant's witnesses tended to exonerate defendant entirely from any negligence causing the plaintiff's alleged injuries.

There was also a sharp conflict in the testimony relative to a fracture alleged to have been sustained in the right parietal region of plaintiff's skull. X-ray pictures were introduced in evidence. The originals used in the trial were filed here for our examination. Plaintiff's experts testified that such pictures showed a fracture, while experts used by defendant testified to the contrary.

If the jury had believed defendant's witnesses, it would have been amply justified in finding that no such accident occurred, and that plaintiff was feigning her injuries, at least in so far as she claimed they were sustained as the result of the accident in question. Since the case was argued and submitted in this court, defendant has filed a motion to set aside such submission. Said motion is supported by affidavits of witnesses who claim to have observed conduct of plaintiff at her home in Chattanooga, Tenn., indicating that she had practically recovered from any injuries she may have sustained, and also tending to support an inference that her injuries were largely feigned. Affidavits tending to show the contrary have been filed by the plaintiff.

I. The motion to set aside the submission of the case in this court must be overruled. If the plaintiff conceded the truth of every statement made therein, it would not help matters. If the submission should be set aside, there is no way this court could consider the matters set forth in the motion upon a reargutnent. This is a law case, and it is here upon appeal. In reviewing the correctness of the trial court's rulings and sufficiency of the evidence, we are confined wholly to matters appearing in the record proper and in the bill of exceptions, unless it be those matters and things of which this court may take judicial notice. 4 Corpus Juris, 678, § 2578; Dennison v. Kansas City, 95 Mo. loc. cit. 430, 8 S. W. 429; Bradley v. West, 60 Mo. loc. cit. 44; Sheets v. Railroad, 152 Mo. App. loc. cit. 382, 133 S. W. 124; Fitzmaurice v. Turney, 214 Mo. 628, 114 S. W. 504.

Counsel have not suggested how the alleged newly discovered" evidence can avail the defendant in this court. It might be unkind to suggest that the chief purpose of the motion, with its accompanying affidavits, is to create an atmosphere in this court unfavorable to the plaintiff. In passing upon questions properly in the case, we will endeavor to keep ourselves from any such influence.

II. Defendant orally objected to the introduction of any evidence, upon the ground that the amended petition failed to state a cause of action. The charge of negligence was:

"That while plaintiff was standing on said rear platform, as aforesaid, the conductor in charge of said car carelessly and negligently opened the door thereof while the same was in motion and while plaintiff, as aforesaid, was standing on said platform, and the agents or servants of said defendant carelessly and negligently caused said car to stop with a sudden and violent jerk while plaintiff was standing on said rear platform and while the door of said car was open, as aforesaid, whereby plaintiff was caused to and did fall from the rear platform of said car to the street on said Delmar boulevard."

The court overruled defendant's objection to the introduction of testimony, and exception was saved. The question is whether the allegation that defendant negligently stopped the car "with a sudden and violent jerk" is sufficient, without alleging that such jerk was unusual. The same question is raised by the assignment of error that the court modified, and gave as thus modified, plaintiff's instruction No. 1, so as to require the jury to find "that the street car was stopped in an unusual manner, when no such allegation is set forth in the petition, thereby broadening the issues framed by the pleadings." We will consider the two assignments together.

It is the general rule that the instructions may not be broader than the petition. Cases cited by defendant well enough support this rule. Degonia v. Railroad, 224 Mo. 564, loc. cit. 589, 123 S. W. 807; State v. Ellison (Mo. Sup.) 176 S. W. 11, loc. cit. 13; Beave v. Transit Co., 212 Mo. 331, loc. cit. 351, 111 S. W. 52. If the allegation that defendant's servants negligently stopped the street car "with a sudden and violent jerk" is broad enough to include the word "unusual," then the instruction was not broader than the petition, and the giving of instruction No. 1, as modified, was not error. Even though the meaning of the word "unusual" is not embraced within the words "sudden and violent," yet, if the sudden and violent stopping of the car constituted actionable negligence, the petition stated a cause of action.

To support his contention that the word "unusual" is an "essential constitutive allegation," defendant cites Saxton v. Railroad, 98 Mo. App. 494, 72 S. W. 717; Laycock v, United Railways Co., 290 Mo. loc. cit. 351, 235 S. W. 91; Elliott v. Railroad (Mo. Sup.) 236 S. W. 17; Guffey v. Railroad, 53 Mo. App. 463, 466; and Hawk v. Railroad, 130 Mo. App. 658, 664, 108 S. W. 1119.

In the Saxton Case, the train was a passenger train of several cars, drawn by a steam locomotive. The ruling went off largely upon the insufficiency of the evidence to show an unusual or extraordinary jerk, rather than upon the insufficiency of the allegation that defendant negligently caused the train to "jerk suddenly and quickly and with great force." The Court of Appeals evidently deemed the allegations insufficient, however, as it said:

"The sufficiency of this allegation may be well questioned. It seems to us that it should have been alleged that the jerk was extraordinary, or more than a usual and inevitable incident to the acceleration of the speed of the train under the circumstances."

The Laycock Case does not support the contention of defendant, but is really authority supporting the sufficiency of the petition in the case at bar. The allegation there was that defendant negligently "permitted and allowed the same to move with a sudden and unexpected jerk," etc. Small, C., there said:

"We think these allegations are sufficient, after verdict, to state a cause of action. To move a crowded electric street car with a sudden and unexpected jerk with such force as to throw some one inside of the car against the glass entrance door, breaking the glass therein and causing the same to strike plaintiff in the eyes and in his face, greatly injuring him, is, in substance and effect, to allege facts showing an extraordinary and unusual movement of such a car. The cases cited by learned counsel for appellant, of jerks, of no greater force than that alleged in the petition, on cable ears or freight trains, do not apply to this case, because there is a wide difference between the jerks and lurches of cable cars and freight trains necessarily incident to their operation and the jerks and lurches incident to the operation of an electric street car."

The Elliott Case was for an injury occurring upon a...