Thomure v. St. Louis & S. F. R. Co.

• Citation: 191 Mo. App. 640,177 S.W. 708
• Decision Date: 08 June 1915
• Docket Number: No. 13991.,13991.
• Parties: THOMURE v. ST. LOUIS & S. F. R. CO
• Court: Court of Appeal of Missouri (US)

177 S.W. 708

191 Mo. App. 640

THOMURE v. ST. LOUIS & S. F. R. CO

No. 13991.

St. Louis Court of Appeals. Missouri.

June 8, 1915.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

Action by Sophia Thomure against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. F. Evans, of St. Louis, W. J. Orr, of Springfield, and' Moses Whybark and A. P. Stewart, both of Cape Girardeau, for appellant. Clyde Williams and R. A. Frazier, both of Hillsboro, for respondent.

REYNOLDS, P. J.

Respondent here, plaintiff below, on the morning of February 26, 1913, boarded a train of the defendant at St. Mary's, intending to go to Horine, a station on the line of the road of the defendant, paying her fare and obtaining a ticket, which the conductor of the train took up during the course of the journey. She seated herself in one of the passenger coaches of the train, about the third seat from the front end of the coach. When the train approached Horine Station, the porter called out the name of the station as the next stop, and when the train stopped, the porter again called the station, went out on the front platform, which was the ordinary vestibule platform, raised the covering that was over the steps, took his step or footstool and placed it on the ground or on the platform at the foot of the car steps, the lower step of the car being about 22 inches from the level of the platform at the station. He stood there about one minute, he says. The conductor, who had been sitting in the rear of the same car in which plaintiff was seated, got up, called the station, went out of the rear of the car and stood by it on the station platform, when he ordered the porter to go forward and assist the freight agent in loading three cans of milk into one of the baggage cars, and also to assist in loading into that car a calf, which had been tied near the track. There were four cars in the train, two baggage cars, a smoker and a coach. Before going forward to attend to this the porter put his stool back on the vestibule, and he testified that the door of the car was closed and no one was on its platform or steps. He says it took him about one minute to assist in loading the milk cans and calf. After assisting the agent in loading these, the porter signalled to the conductor to that effect, and the train, on the signal of the conductor, pulled out from the station, having stopped, as the porter said, "not less than two minutes." Plaintiff, as soon as the train had stopped, got up from her seat, picked up her bundles and went out on the front vestibule of the car in which she was riding and looked around, as she said, to see if there was any one there to help her down: She was a woman about 52 years of age, and rather heavy. She neither saw any one around to help her, nor did she see any stool at the foot of the car step, but she got down to the lower step of the car, went to step off, and the train started and threw her off and on to the ground. A young man called by plaintiff, and who was present, testified that he saw the porter go ahead and help load the calf and that after that was loaded the signal was given to the engineer to go ahead, and as he was looking at the moving train "he saw the plaintiff fall forward. The train hadn't moved more than three feet before she landed on the platform. * * * I saw her fall off, but I can't swear whether she jumped or was thrown off by the movement of the train," he said. The result of her fall was that two bones in plaintiff's right leg were broken a short distance below the knee. She was lifted up and carried into the station by the station agent and a bystander, subsequently carried over to the town of Victoria in a vehicle, and from there taken to her home, where on the evening of that day the fractured bones were set by an attending surgeon and the limb bandaged and afterwards put into a Hodgen splint. She was confined to her bed something like six weeks and at the time of the trial, which took place on June 10, 1913, as we understand from the testimony, was still using crutches or a crutch.

The surgeon, who had attended her in the first instance, testifying for plaintiff, said that while her leg was still swollen a good deal some two or three weeks before the day of the trial, which was the last time he had examined her, and while she was not then able to use the limb without the aid of a crutch and was walking with crutches, he did not think there would be a permanent injury, but that it would be quite a long while, considering the age and weight of plaintiff, before she could walk without crutches; that in the course of time he thought her limb would be as good as ever.

The other attending surgeon, as had the former, testified that there was no shortening of the limb; that in his opinion it would be a good while before plaintiff would be able to use the limb, taking into consideration the fact that she was a very large woman and considering her age; that if she were younger she would probably recover faster, but that he would not like to give an opinion as to the permanency of the stiffness of the knee, and thought that plaintiff would have to use crutches six months longer, and that the leg would give her trouble for some time.

The conductor of the train, testifying on behalf of defendant, stated that he had seen plaintiff in the car on this train; had taken up her ticket and knew that her destination was Horine Station and had not seen her get off at that station; had seen only one passenger, a man, get off there; knew nothing of the accident to plaintiff until some time afterwards.

The station agent testified that as the train was moving he noticed the plaintiff on the lowest step of the car platform and just as she got ready to step down "she jumped forward and fell on her hands and knees."

There is no direct testimony in the case as to whether the train started slowly or with a jerk.

So much for the material evidence for both parties.

The petition avers that before the train had stopped

"for a reasonable and sufficient length of time to enable the plaintiff, using due diligence, to alight therefrom in safety and while the plaintiff, in the exercise of ordinary care and with no fault on her part, was attempting to and in the act of alighting from the train, * * * the said defendant by and through its agents, * * * in charge of and operating said train, negligently, carelessly and recklessly caused said train to be started forward with a sudden jerk and bound without the knowledge of or any warning whatever to the plaintiff, thereby causing plaintiff to be thrown and to fall with great force and violence from said car and train to the ground."

Alleging her injuries and suffering,

"plaintiff further states that the injuries aforesaid were directly caused by the carelessness and negligence of the agents, servants and employés of defendant in charge of and operating said train, in not being present at that part of defendant's train from which plaintiff alighted, to assist and enable plaintiff to alight in safety, in not stopping said train a sufficient length of time to permit plaintiff to alight therefrom in safety, and in causing said train to move forward suddenly while plaintiff was in the act of alighting therefrom and before she had fully left said train."

Damages were asked in the sum of $10.000.

The answer, after a general denial, pleaded contributory negligence. The reply was a general denial.

The trial resulted in a verdict in favor of plaintiff in the sum of $3,500, judgment following, from which defendant has duly appealed.

The first error here assigned is to the action of the court in overruling a demurrer to the evidence at the close of the case, and in refusing to peremptorily instruct for defendant, it being argued that the petition charged specific acts of negligence, and plaintiff therefore cannot invoke the doctrine of res ipsa loquitur. We do not understand that plaintiff has invoked that doctrine and we see no indication of it in the instructions given by the court. On the evidence in the case we are of the opinion that the request for a peremptory instruction was properly refused.

The next assignment is fiat an instruction given for plaintiff is erroneous because there was no evidence that the train was caused to start and move suddenly forward, it being argued that it is error to submit to the jury issues which have no evidence to support them. The latter proposition admits of no denial; it is too firmly established in the jurisprudence of our state by frequent decisions of all of our appellate courts, to require citation of authority in its support. All the authorities cited by learned counsel for appellant under this second point are on that proposition. The objectionable words in the instruction complained of are those underscored in this instruction, which told the jury that to find for plaintiff, among other things, they must find, "that the agents and servants of defendant carelessly and negligently...