Shannon v. People's Motorbus Co.
| Citation | 20 S.W.2d 580 |
| Decision Date | 08 October 1929 |
| Docket Number | No. 20769.,20769. |
| Parties | SHANNON v. PEOPLE'S MOTORBUS CO. OF ST. LOUIS. |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.
"Not to be officially published."
Action by Margaret A. Shannon against the People's Motorbus Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.
Carter, Jones & Turney, of St. Louis, for appellant.
Fred Berthold and Koenig & Koenig, all of St. Louis, for respondent.
Plaintiff recovered judgment in the sum of $4,500 in her action for personal injuries alleged to have been sustained by her when struck by a motorbus of the defendant company. The defendant in due course appeals.
Plaintiff's second amended petition, upon which the case was tried, alleged that at about 7:25 o'clock on the morning of March 13, 1926, she alighted from the rear step of a northbound street car at the southeast corner of Twelfth boulevard and Spruce street in the city of St. Louis, Mo., and that as she was walking northeastwardly toward the east sidewalk at said corner, a motorbus of the defendant company, being operated northwardly along Twelfth boulevard, struck her, knocking her down and causing her injuries.
Plaintiff's petition set up five assignments of negligence, and she was permitted to submit her case to the jury upon two thereof, namely, that of negligent speed, and negligent failure to stop, slow up, or change the course of the bus to avoid injuring her. The answer was a general denial.
Concededly plaintiff, some four or five weeks after March 13, 1926, the date plaintiff contends she was struck by a motorbus of the defendant company, was taken down with a severe attack of arthritis. The real issues in the case were whether plaintiff was in fact struck by defendant's motorbus, as alleged in her petition and as testified to by her, and, if she was so struck, whether or not such injury, if any, that she might have sustained thereby, resulted in plaintiff's attack of arthritis.
Plaintiff's own testimony was to the effect that on the morning in question she had been a passenger on a north-bound street car and alighted from the rear end thereof at Twelfth boulevard and Spruce street, and that as she stepped off at the rear of the car she looked to see if there was any traffic approaching and saw a motorbus on the east side of Twelfth boulevard approaching from the south, which was then 100 to 150 feet away from her; that she thereupon started walking northeastwardly toward the southeast corner; that when she had gotten within a step or two of the sidewalk, she was struck on her right shoulder by the right front side of the motorbus, twisting her left ankle and knee under her, knocking her down into the gutter; that the motorbus proceeded on its way without stopping. She further testified that the weather was clear and the street dry, and that no automobiles were parked on the east side of Twelfth boulevard; that no warning signal was sounded by the chauffeur of the motorbus; that a man named Thomas H. Moore, who was standing on the corner at the time, offered her his assistance, but she declined and proceeded alone to the place where she worked; that as a result of the impact her right shoulder, right arm, and her left thigh, knee, and ankle were bruised and skinned, and her left ankle and knee twisted under her, and her back wrenched; that she did not call in a physician until some three or four weeks later, and then only because she was suffering pain in all parts of her body and particularly in her left ankle.
Her physician, Dr. Youngman, diagnosed her case as arthritis and prescribed for her for some three or four weeks and then sent her to the Lutheran Hospital, where she remained about three weeks. She then returned to her home, where she remained some four or five weeks longer, being able to return to her work the latter part of September, 1926. Plaintiff continued under Dr. Youngman's care up to the time of the trial. She further testified that though she weighed about 125 pounds prior to the date she was injured, at the time of the trial she weighed but 100 pounds; that throughout the period of her illness she had no appetite and suffered with headaches and nervousness; that she now walks with a limp and "off and on" continues to suffer pain.
Thomas H. Moore, a witness adduced on behalf of plaintiff, testified, corroborating plaintiff's own testimony as to the manner in which she was struck by the motorbus. He testified that he was standing on the southeast corner of Twelfth boulevard and Spruce street and saw plaintiff get off the street car, and that after looking for traffic plaintiff started diagonally toward the corner where he was standing; that when plaintiff alighted in the street the bus was some 75 to 100 feet south of her and was proceeding at a speed of 15 to 20 miles an hour; that the bus did not reduce its speed and continued without changing its course until it overtook plaintiff at a time when she was but a step or two from the curb, and that the right front side of the bus "brushed her * * * along her shoulder * * * and brushed her down into the curb."
A Mrs. Lorenz testified she was employed by the same company as plaintiff, and that on the day in question plaintiff showed her bruises and scratches upon her body; and another witness, a Mrs. Stewart, testified that she too had seen bruises and scratches on plaintiff on the evening of the day in question, and that some weeks later these marks were still visible on plaintiff's body when she visited her at the hospital.
Dr. Youngman testified that he was first called in to attend plaintiff on May 18, 1926, at which time he found an inflamed condition about the left shoulder and left arm, and there was some swelling and discoloration on the ankle, injuries such as could result from trauma; that he treated her daily for three months, and then two or three times a week, and that she was still under his care up to the time of the trial; that it was upon his advice that plaintiff went to the hospital, where she remained some three weeks, during which time every two or three days serum was injected into her system; that when she came out of the hospital she was on crutches part of the time; that the condition of plaintiff's left foot and ankle is permanent in nature and causes plaintiff to walk with a limp; that she is likely to walk with a limp as long as she lives.
Defendant, appellant here, urges that plaintiff's testimony is opposed to physical laws and is so unbelievable that this court should resort "to the extraordinary procedure of reversing this case on that ground." In support of this contention it is urged that the verdict and judgment for the plaintiff is based upon an alleged happening which was physically impossible and is in the teeth of the testimony of plaintiff herself, which shows that she had made no mention to the hospital authorities that she had at any time been injured, but had indicated that her arthritis was due to the "flu," and therefore should not be permitted to stand.
We concede that it is a prerogative of courts of error in extreme cases, where a verdict is palpably wrong, as based upon the testimony of witnesses upon a material issue which is contrary to physical facts, or upon testimony (necessarily relied upon) which is inherently impossible, or so opposed to all reasonable probability as to be manifestly false, yet this prerogative exists as an emergency expedient and is sparingly employed. Hook v. Ry. Co., 162 Mo. 569, 63 S. W. 360; Nugent v. Kauffman Milling Co., 131 Mo. 241, 33 S. W. 428; Champagne v. Hamey, 189 Mo. 709, 88 S. W. 92; Sexton v. Met. St. Ry. Co. 245 Mo. 254, 149 S. W. 21; Spiro v. St. Louis Transit Co., 102 Mo. App. 250, 76 S. W. 684; Schmitt v. Oil Co. (Mo. App.) 221 S. W. 389; Roseman v. United Rys. Co. (Mo. App.) 251 S. W. 104.
We have considered the alleged inconsistencies in plaintiff's own testimony as urged by appellant, and rule that such inconsistencies as may appear do not bring the case within the rule. This would be our view of the case even though plaintiff's testimony formed the only basis for a verdict in her favor; but here, however, we have the witness...
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