Simmons v. Wells

• Decision Date: 13 September 1929
• Docket Number: 27648
• Citation: 20 S.W.2d 659,323 Mo. 882
• Parties: Harry J. Simmons, Appellant, v. Rolla Wells, Receiver of United Railways Company of St. Louis
• Court: Missouri Supreme Court

20 S.W.2d 659

323 Mo. 882

Harry J. Simmons, Appellant, v. Rolla Wells, Receiver of United Railways Company of St. Louis

No. 27648

Supreme Court of Missouri

September 13, 1929

Rehearing Denied October 14, 1929.

Appeal from Circuit Court of City of St. Louis; Hon. Victor H Falkenhainer, Judge.

Affirmed.

James J. Milligan for appellant.

(1) Under the facts and circumstances it was erroneous to instruct the jury that plaintiff assumed the ordinary and usual risk of riding on the step and rear platform with the door open. Delegarder v. Wells, 258 S.W. 9; Cooley v. Dunham, 196 Mo.App. 399; Tillery v Harvey, 214 S.W. 247. (2) Where two acts of negligence were pleaded separately and then conjunctively, with one predicated upon the other, it was error, under the evidence, to instruct that both acts must be found negligent before plaintiff could recover. Keppler v. Wells, 238 S.W. 428; Kirn v. Harvey, 208 S.W. 479; Giles v. Railroad Co., 212 S.W. 874; Carson v. Wells, 276 S.W. 29. (3) The fact that the injuries may have been an aggravation of an existing disease is no defense, and it is unnecessary to plead the aggravation in the petition. Smart v. Kansas City, 208 Mo. 206; Delaplain v. Kansas City, 109 Mo.App. 114; Owen v. Ry. Co., 95 Mo. 169; Brown v. Railroad, 56 Mo. 588; Hall v. Coal & Coke Co., 260 Mo. 351. (4) The seriousness of injuries is persuasive to a jury to find for the plaintiff. If the injuries are trivial, it is persuasive to the jury to find for the defendant. Rosenzweig v. Wells, 273 S.W. 1071.

T. E. Francis and Ernest A. Green for respondent.

(1) Under all the evidence in the case the verdict was so clearly for the right party that the judgment should not be reversed for mere technical error, if any, in instructions. Delegarder v. Wells, 258 S.W. 9; Kirby v. United Railways, 242 S.W. 79; Secs. 1276, 1513, R. S. 1919; Fritz v. Railroad, 243 Mo. 69; State v. Vickers, 209 Mo. 34; Trainer v. Mining Co., 243 Mo. 359; Quinn v. Railroad, 218 Mo. 561; Mockowik v. Railroad, 196 Mo. 568; Moore v. Railroad, 176 Mo. 545; Putermann v. Simon, 127 Mo.App. 514; Schuepbach v. Gas Co., 232 Mo. 611; Bradley v. Coffee Co., 213 Mo. 325. (2) Instruction 6 was a correct declaration of the law. Under the issues as presented by the plaintiff's amended petition and the evidence, the plaintiff as a matter of law did assume the ordinary and usual risks and hazards incident to riding upon the step and rear platform of defendant's street car while the doors were open. Laycock v. United Railways, 227 S.W. 884; Bartley v. Street Railway, 148 Mo. 124; Saxton v. Railroad, 98 Mo.App. 494; Bobbitt v. Street Railway, 169 Mo.App. 424; Katon v. Rys. Co., 241 S.W. 983; Yarnell v. Railway Co., 113 Mo. 570; Laycock v. United Railways, 290 Mo. 344, 235 S.W. 91 (affirming 227 S.W. 883); Hite v. Street Railway Co., 130 Mo. 139; Laible v. Wells, 296 S.W. 428. (3) Defendant's instructions 4, 5 and 6 were correct declarations of the law, under the assignment of negligence in the plaintiff's amended petition on which he elected to submit the case to the jury. This assignment was in the conjunctive and charged two separate and distinct acts of negligence jointly concurring to produce the result. Since both the opening of the doors and the violent, sudden and unusual stop are pleaded in the assignment submitted to the jury by the plaintiff, it is incumbent upon the plaintiff to prove both allegations, and unless plaintiff does prove both, he cannot recover. Kirn v. Harvey, 208 S.W. 479; Giles v. Railroad Co., 212 S.W. 874; Simpson v. Wells, 237 S.W. 528; Gayle v. Car & Foundry Co., 177 Mo. 449. (4) The court did not err in refusing to permit plaintiff to offer testimony tending to show that the effect of the fall in question was to aggravate an existing disease, because the claims were special damages and should have been pleaded. Lane v. Railways Co., 228 S.W. 872; Hall v. Coal & Coke Co., 260 Mo. 351; Shafer v. Harvey, 192 Mo.App. 502; Johnson v. Railroad, 192 Mo.App. 1; Langley v. Lead Co., 261 S.W. 688. (5) Plaintiff's refused Instruction B was properly refused. It is entirely too broad, and authorized a recovery on the plaintiff's part "as a direct result of the negligence and carelessness of defendant," whether pleaded or not. It did not seek to limit the recovery to either the negligence charged in the petition, or to the injuries alleged. Rosenzweig v. Wells, 273 S.W. 1078.

OPINION

Ragland, J.

Action for personal injuries.

On the night of April 17, 1921, between 9:30 and ten o'clock, plaintiff was a passenger on one of defendant's street cars which was proceeding north on Grand Avenue, in the city of St. Louis. He was intending to leave the car when it reached Chouteau Avenue and take another car at that point for Webster Groves where he lived. He was sitting on the rear platform -- "in that round seat in the rear." As the car approached Chouteau Avenue the conductor announced change of cars for Maplewood and Meramec Highlands. Plaintiff remained seated for a second or two and until the conductor opened the door of the rear vestibule. This he did with an automatic device which opened the door and lowered the step on the outside. After the door was opened plaintiff walked slowly over and stepped down onto the step. The car was then moving slowly -- at the rate of a mile an hour. It was the custom of defendant, known to plaintiff, to not open the door until the car came to a full stop; plaintiff supposed the car had stopped when he walked to the door preparatory to getting off. He discovered, however, when he stepped down onto the step that the car was still in motion, and he stood there waiting for it to come to a stop. While he was so standing the car "made a sudden spurt:" "picked up speed very suddenly and then almost simultaneously it came almost to a dead stop:" "it made a sudden lurch -- it jumped -- just as if something was the matter with the brakes." The next that plaintiff knew he was lying against the curb on the east side of Grand Avenue.

The foregoing are the facts and circumstances attending the receipt of the alleged injuries for which plaintiff sues, as detailed by him from the witness stand.

One other witness, a Mrs. Snelbacher, who was also a passenger on the car and who got off at Chouteau Avenue, testified: "The car gave a sudden lurch before it came to Chouteau Avenue . . . the lurch made me sit down suddenly in my seat."

This action was commenced September 10, 1923. The filing of the petition on that date was the first notice that defendant had of any claim on the part of plaintiff that he had been thrown from one of the cars operated by defendant or that he had suffered any injuries whatever while a passenger on any of such cars. Defendant's rules required all conductors and motormen to make and file written reports of all accidents or casualties occurring in connection with the operation of the cars: none was ever filed with respect to the one which plaintiff claims happened and caused him injury. Both the motorman and the conductor who were operating the car in question testified that they were unable to recall any sudden or violent lurch or jerk of the car or the occurrence of any such incident as that described by the plaintiff.

At the time of the alleged injury the plaintiff was about fifty-four years old; he had served for sixteen years as a soldier in the army of the United States; he was then employed in an executive position in the Boy Scouts organization. At the time he claims to have been thrown from the car, and for some months afterward, he supposed that he had sustained mere bruises and injuries of a minor nature. Later certain nervous ailments and a disease of the bones, osteitis, developed, and these he attributes to his original injury. On the trial it appeared that plaintiff was afflicted with syphilis and that of itself was sufficient to have caused the osteitis. He offered to show that the syphilis was, or could have been, latent in his system and caused to become active by the bruises and injuries sustained through being thrown from the car, or, if active, to have been aggravated thereby. The trial court sustained defendant's objection to the evidence on the ground that the petition gave no notice of such a claim.

The petition contained three assignments of negligence, two of which were abandoned by plaintiff. The one on which the cause was submitted was as follows:

"That defendant, his agents and servants were negligent and careless in permitting and causing the rear doors of the said street car to be opened and remain open while the street car was still in motion and in suddenly and violently diminishing or increasing the speed of the street car, causing a sudden, unusual and violent jolt, jerk or lurch before reaching the regular stopping place, when they knew, or by the exercise of ordinary care might have known, the plaintiff was likely to be thrown from the rear step and platform and injured."

The answer consisted of a general denial and a plea of contributory negligence.

For the plaintiff the court instructed the jury that, if they found that the defendant was negligent "in permitting or causing the rear doors of the said street car to be opened and remain open while the car was still in motion; in suddenly and violently diminishing or increasing the speed of said car; and in causing a sudden, unusual and violent jerk, jolt or lurch before reaching the regular stopping place," and that as a result of such negligence plaintiff sustained injury, their verdict should be for the plaintiff.

At the instance of defendant the court gave, among others, the following instruction, numbered 6:

"The court instructs the jury that the plaintiff, as a passenger upon defendant's street car...