Shaw v. East St. Louis Ry. Co.
| Decision Date | 20 December 1932 |
| Docket Number | No. 22099.,22099. |
| Parties | SHAW v. EAST ST. LOUIS RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Charles Rutledge, Judge.
"Not to be published in State Reports."
Action by Helen Shaw against the East St. Louis Railway Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Holland, Lashly & Donnell, of St. Louis, for appellant.
Louis E. Miller, of St. Louis, for respondent.
Defendant brings this appeal from a judgment rendered against it in favor of plaintiff in her action for damages for personal injuries alleged to have been sustained as a result of a fall by her while alighting from one of defendant's street cars at the Eads Bridge Station in St. Louis.
Plaintiff's petition alleges that as a passenger, while she was alighting from the defendant's street car by way of the rear platform, which had double doors and a folding step leading from the platform, she stepped down with one foot to the folding step, and while the other foot was on the platform of the car, the step descended three or four inches, which caused her to fall on her right side to the platform of the station, causing her injuries.
Defendant's answer was a general denial, coupled with a plea of contributory negligence to the effect that the plaintiff, while alighting from the street car, failed to exercise ordinary care to observe her surroundings and to maintain her balance and equilibrium.
It is conceded plaintiff made a submissible case.
The jury returned a verdict in favor of plaintiff and against the defendant in the sum of $9,250. Thereafter the trial court overruled defendant's motion for a new trial conditioned upon plaintiff remitting $5,250, which remittitur the plaintiff in due course made, and from the resulting judgment of $4,000 defendant in due course appeals.
Appellant assigns as error that the trial court refused to give its requested instruction B, which embodied the theory of its defense of contributory negligence, "that is that the plaintiff failed to exercise ordinary care to observe her surroundings and to maintain her balance and equilibrium," which "was offered on the theory that the plaintiff caught her heel and stumbled on the platform or step through no negligence of the defendant but because of her own lack of care in leaving the car."
We readily concede that the defendant has a right to have its defense fully and clearly presented to the jury in its instructions, provided the particular matter is not properly covered by other instructions. Jennings v. Cooper (Mo. App.) 230 S. W. 325; Stephens v. City of Eldorado Springs, 185 Mo. App. 464, 171 S. W. 657; Webb v. Byrd, 203 Mo. App. 589, 219 S. W. 683. But a careful reading of the record has brought us to the conclusion that there is no evidence in the record from which the inference of fact could be drawn that plaintiff failed to observe her surroundings and failed to maintain her balance and equilibrium because she failed to exercise ordinary care in leaving the car. Furthermore, defendant's theory "that plaintiff caught her heel and stumbled on the platform" was fully presented to the jury in defendant's instruction numbered 5, which told the jury if they believed and found from the evidence that plaintiff caught her heel on the platform of the car and fell from the platform by reason of so catching her heel, then and in that case plaintiff was not entitled to recover and that they must find their verdict for the defendant. The point is ruled against appellant.
It is seriously contended that the court erred in not sustaining defendant's motion for a new trial on the ground that the verdict was so excessive as to indicate that it was the result of bias and prejudice and not based upon evidence. In support of this...
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... ... verdict is excessive and the court erred in not requiring a ... remittitur. Dorman v. East St. Louis Ry ... Co., 75 S.W.2d 854; Clark v. Atchison & Eastern ... Bridge Co., 62 S.W.2d 1079; ... Fleming, 298 S.W. 134; Hulen v. Wheelock, 318 ... Mo. 502, 300 S.W. 479; Jepson v. Shaw Transfer Co., ... 211 Mo.App. 366, 243 S.W. 370; Stofer v. K. C. Pub. Serv ... Co., 226 Mo.App ... ...
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...241, 242(1) (Mo.App.1966); Anderson v. Welty, 334 S.W.2d 132, 139(14) (Mo.App.1960) and cases cited in n. 11; Shaw v. East St. Louis Ry. Co., 55 S.W.2d 497-498(1) (Mo.App.1932). Although plaintiffs' instructions in this case referred to the matter that Bennie did not know or by the use of o......
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