Stokes v. Metropolitan St. Ry. Co.

• Decision Date: 16 June 1913
• Citation: 173 Mo. App. 676,160 S.W. 46
• Parties: STOKES v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

160 S.W. 46

173 Mo. App. 676

STOKES v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

June 16, 1913.

1. CARRIERS (§ 320)—INJURY TO PASSENGER ALIGHTING—EVIDENCE.

It cannot be said as matter of law that plaintiff's version of her injury that, while standing on the lower step of a street car ready to alight, a sudden movement of the car threw her off, she yet alighting on her feet, and so jarred her as to cause a prolapsed uterus, is so contrary to physical law and so incredible that it should be accorded no probative value.

2. CARRIERS (§ 318)—INJURY TO PASSENGER — CAUSE OF INJURY — SUFFICIENCY OF PROOF.

There being evidence that plaintiff received a sudden jolt when thrown off a street car by its sudden start, that such a sudden jolt is one of the causes of a prolapsed uterus, that immediately thereafter she had such trouble and previously had been free therefrom, it cannot be said she failed in her proof of that being the cause merely because of the bare possibility that her condition might have resulted from some other cause.

3. APPEAL AND ERROR (§ 261) — REVIEW — NECESSITY OF EXCEPTIONS.

Complaint may not be made of remarks of counsel in argument; an exception thereto not having been preserved.

4. DAMAGES (§ 132) — PERSONAL INJURIES — EXCESSIVE VERDICT.

A verdict of $7,500 for a prolapsed uterus, with its usual concomitants, is excessive and should be reduced to $4,000, though the evidence shows that the injury may be permanent and that the woman has endured great pain and suffering and may suffer future pain; she not being physically disabled, and her earning capacity not being impaired.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by Nellie Stokes against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed conditionally.

John H. Lucas, of Kansas City, and L. T. Dryden, of Independence, for appellant. Kimbrell & White, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff alleges that she sustained personal injury in alighting from a street car operated by defendant and that her injury was caused by negligence of defendant in prematurely starting the car while she was in the act of alighting. The answer is a general denial. The first trial of the case resulted in a verdict for plaintiff in the sum of $1,100, but this verdict was set aside and a new trial ordered. At the second trial the jury returned a verdict in favor of plaintiff for $7,500, and, after its motions for a new trial and in arrest of judgment were overruled, defendant brought the case here by appeal.

The injury occurred early in the afternoon of Saturday, August 27, 1910, at the corner of Fortieth street and Woodland avenue in Kansas City. Plaintiff, a young widow, living with her parents and employed as a stenographer, was going home on a Woodland avenue car on which she had become a passenger, and in response to her signal the car was stopped at the regular stopping place at the intersection of Fortieth street and Woodland avenue to allow her to alight. She proceeded to leave the car and had reached the bottom step when the motorman, in answer to a signal from the conductor, started the car forward. At this instant plaintiff had both feet on the bottom step and was preparing to step to the pavement but did not have hold of a handhold and the unexpected starting of the car caused her to be suddenly thrown from the step to the pavement. She did not fall but landed on her feet with a jolt or jar so violent that she suffered a temporary suspension of the powers of locomotion. Her home was near by and her mother, who was standing on the front porch, observed the manner in which she left the car, her brief pause, and her evident pain and distress as she walked home. The evidence of plaintiff is to the effect that before her injury she had been in exceptionally good health and free from disease and that immediately thereafter she exhibited symptoms of internal injuries of a severe and permanent character. At first she did not understand these symptoms and attributed them to natural causes,...