Smith v. St. Louis Public Service Co., 23151.

• Decision Date: 02 July 1935
• Docket Number: No. 23151.,23151.
• Citation: 84 S.W.2d 161
• Parties: SMITH v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

84 S.W.2d 161

SMITH v. ST. LOUIS PUBLIC SERVICE CO.

No. 23151.

St. Louis Court of Appeals. Missouri.

July 2, 1935.

Appeal from St. Louis Circuit Court; Clyde C. Beck, Judge.

"Not to be published in State Reports."

Suit by Ethel Smith against the St. Louis Public Service Company, a corporation. From a judgment for the plaintiff, the defendant appeals.

Reversed and remanded for new trial.

T. E. Francis and S. G. Nipper, both of St. Louis, for appellant.

Robert Kelley and Durward S. Brown, both of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for damages for personal injuries alleged to have been sustained by respondent, plaintiff, on January 30, 1931. A trial before the court and a jury resulted in a verdict and judgment for plaintiff in the sum of $1,058.48. Defendant's motion for a new trial having been overruled, it brings the case to this court by appeal.

Plaintiff's petition alleged that on January 30, 1931, she was a passenger on a westbound Page avenue street car owned and controlled by defendant; that while she was alighting from said street car, which was standing at the intersection of Finney and Taylor avenues in the city of St. Louis, she was thrown therefrom to the street and seriously injured as a direct result of the negligence and carelessness of defendant.

The petition contained three assignments of negligence. In substance they were, first, that the defendant's servants negligently permitted the exit doors of its street car to close suddenly, striking plaintiff and causing her to be thrown to the street; second, that defendant's servants negligently failed to warn plaintiff of the closing of the doors of said street car, when they knew, or by the exercise of the highest degree of care could have known, that plaintiff was alighting from said street car; third, that defendant's servants saw and knew, or by the exercise of the highest degree of care could have seen and known, that plaintiff was alighting from said street car and was in a position of imminent peril of being struck by the doors thereof, in time thereafter, by the exercise of the highest degree of care, to have refrained from closing said doors or to have given plaintiff a timely warning and thereby avoided throwing and injuring plaintiff, but negligently failed to do so.

The answer of defendant was a general denial.

The evidence shows that at about a quarter to six on the morning of the day in question, plaintiff boarded a westbound Page avenue car of defendant at Ninth street and Washington avenue in the city of St. Louis. She received a transfer from the Page avenue to the Taylor avenue line of the defendant. When the Page avenue car reached Taylor and Finney avenues, where plaintiff was to transfer to the Taylor avenue line, it came to a stop and plaintiff started to get off. Plaintiff testified that she put her left foot on the step of the street car, and as she went to make another step the door of the car was closed on her right foot and she was thrown to the ground; that she was rendered unconscious and did not recover consciousness for about forty-five minutes; that the door of the car from which she was thrown was an exit in the center of the car; that a conductor was stationed at this door, who opened and closed the doors. She testified that when she regained consciousness a colored man was holding her up; that he assisted her to get on a Taylor avenue car and she went home; that upon reaching her home, her aunt assisted her upstairs to bed; that the defendant company was notified and sent Dr. Krug out to see her; that the doctor came out the same day she was injured; that Dr. Krug treated her on three different occasions by putting iodine on her left knee and taping it with adhesive tape. She testified that her left knee "was bursted open, almost."

Plaintiff further testified to the effect that she was dissatisfied with Dr. Krug's treatment and that he gave her no further treatment after his third visit; that she employed Dr. Gregg who treated her from the 7th of February until about the 10th of April, 1931; that she was examined by a Dr. Ross during that period, and also called in a Dr. Johnson; that about the 29th of April, 1931, she called in Dr. Walker who treated her until the following month. She stated that she had complained to Dr. Krug of pains in her back and stomach and that he had not done anything for her in this connection; that she did not tell Dr. Krug not to come back any more, but when asked if her husband did so, she answered: "I guess he did."

Dr. Theodore L. Walker testified for plaintiff to the effect that he treated plaintiff for a period of time following April 29, 1931, but since there is no question raised on this appeal concerning the extent of plaintiff's injuries, or the amount of damages awarded, it is not necessary to go further into this phase of the case. The testimony of plaintiff and Dr. Walker constituted plaintiff's case.

Defendant did not introduce or offer any testimony with respect to the happening of the accident, claiming it was a "no report" case, meaning that it had received no report thereof from any of its servants.

Dr. Krug testified on behalf of the defendant that he received instructions from defendant's chief surgeon on the day of the accident to call to see plaintiff; that he did call to see her on that day and gave her treatment; that he treated her on two subsequent visits which he made to her home; that these treatments were for injuries to her left knee; that plaintiff had a contusion and abrasion of that knee; that he dressed the wound with iodine and put an antiseptic gauze dressing over it.

E. M. Dowell, a foreman in defendant's De Baliviere car sheds, testified that it is the custom and practice of the defendant company, in cases where no report is made of an accident concerning which a claim has been made, to send him a list of car crews for the purpose of having him interview such crews to get information concerning such accident; that motormen and conductors are required by defendant company to make a report of any accident occurring on a street car; that he interviewed all the car crews of that car shed and that they all denied that any such accident had taken place; that no accident report was made to defendant by any of its crews with respect to this case.

Robert L. Collins, a claim agent for defendant, testified that he had charge of the investigation of the claim made by plaintiff against defendant; that no report of the accident had been made by the car crew to the defendant; that after receiving notice of an attorney's lien in connection with plaintiff's claim, he went to see plaintiff and took a statement from her, but that she did not sign the statement. The witness testified that plaintiff told him that after her return home on the day of the accident, her husband went out to find the man who had picked her up; that her husband came back and reported to her that the man's name was Luther Logan; that he (the witness) then went to see Luther Logan; that Logan made a statement to him concerning the accident, and later made a second statement; that in the second statement Logan told the witness that plaintiff's husband had offered him (Logan) $100 to act as a witness in the case, but that he had not at that time received the $100; that Logan told the witness he did not see the accident. On cross-examination the witness said that Logan told him on his first visit that he did see the accident; that his (Logan's) eyes were right on the plaintiff a second after she struck the ground; that the second statement the witness got from Logan was in affidavit form and in that statement Logan said he did not see the accident.

Luther Logan was called as a witness for defendant and testified that he did not see the accident at all; that he did not see plaintiff on the day in question; that a couple of days thereafter plaintiff's husband came to see him. He was asked to relate the conversation between himself and plaintiff's husband, but the court sustained an objection made by plaintiff's counsel on the ground that the conversation did not occur in the presence of plaintiff. Defendant then offered to prove by the witness that although he did not see the accident, plaintiff's husband had asked him to be a witness and to testify in court that he did see the accident, and that plaintiff's husband had agreed to pay him $100 for his services. The court refused to admit such testimony and defendant saved its exceptions.

Huston McKissick, a porter in the employ of defendant, testified in behalf of defendant that he knew plaintiff and saw her at her home "that night she said she had fell off the street car"; that he was visiting his brother who lived right next door to plaintiff; that he heard plaintiff speaking about how she fell off the car, and he went into her home and talked to her; that she described to him how the accident occurred; and that he asked her who had seen her and she said, "Nobody." In this connection the witness testified: "She said there was a man going up the street. I said, did the old man see her. She said `No.' I said, you can't do anything with a claim like that. I said the company will treat you right. I said when the claim agent come to see you, you just make a statement and go ahead. I said that all you got to do, and you won't get mixed up.

"Q. What did she say? A. At that time her husband spoke. Her husband said: `I can get a witness —'"

At this point in the testimony of the witness, counsel for plaintiff objected on the ground that the statement of plaintiff's husband would not bind her.

After considerable discussion between counsel on both sides and the court, the court sustained plaintiff's objection whereupon defendant offered to prove by the witness that after the witness had told plaintiff in her home on that occasion that she could not do anything without witnesses, her husband said in her...