Toennies v. St. Louis Public Service Co.

• Decision Date: 06 February 1934
• Docket Number: No. 22741.,22741.
• Court: Missouri Court of Appeals
• Parties: TOENNIES v. ST. LOUIS PUBLIC SERVICE CO.

67 S.W.2d 818

TOENNIES v. ST. LOUIS PUBLIC SERVICE CO.

No. 22741.

St. Louis Court of Appeals. Missouri.

February 6, 1934.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be published in State Reports."

Action by Hilda Toennies against the St. Louis Public Service Company, a corporation. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

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

Bert F. Fenn and James E. Dame, both of St. Louis, for respondent.

BECKER, Judge.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff on June 11, 1928, while a passenger on one of defendant's south-bound street cars which was being operated over Seventh street in the city of St. Louis, as the result of a collision near Cerre street between the street car and a large wagon owned and operated by a transfer company. The trial of the case resulted in a verdict in favor of plaintiff for $2,250. From the resulting judgment, defendant appeals.

This case was here on former appeal taken by the defendant from a judgment in favor of the plaintiff for $1,500, at which time the judgment was reversed and the cause remanded on stipulation of the parties.

Plaintiff's petition alleges that the collision between the street car and the transfer wagon and plaintiff's alleged injuries resulting from said collision were directly caused by the carelessness and negligence of the defendant "without any fault of the plaintiff." The answer was a general denial.

According to plaintiff's testimony, she was a passenger on a street car of the Lee avenue division of defendant, seated in the front seat on the left-hand side of the car; that as the car proceeded south on the west side of Seventh street, and had passed Poplar street, she noticed a wagon about 150 feet distant, coming north on the east side of Seventh street; that, when the street car had gotten within 125 feet of the wagon, the driver thereof extended his hand and made a turn to the left and started to cross the south-bound street car tracks on which the street car was approaching; that the motorman did not try to stop until "he almost hit the wagon"; that plaintiff, just before the collision, "raised up, and I was thrown over that iron rail in front of me"; that the street car struck the wagon at about the right front wheel; that as the result of the collision plaintiff fell back into the street car; that the motorman helped her off the street car and sat her down on the curbstone, after which she went into a building and sat there about half an hour until she felt better, then went home and went to bed. Plaintiff testified that her family physician, Dr. McElwee, called upon her the next morning. Plaintiff further testified that, as the result of her falling over the rail and then back upon the floor of the car, she sustained various injuries to her abdomen, ribs, arms, shoulders, back, and nerves. Plaintiff admitted that in January, 1928, she had been operated on for goiter, stating that she remained in the hospital from January 11th to January 25th, and that she suffered "with her nerves" after that operation for a period of time, but that, two weeks before she met with her alleged injuries, damages for which are herein sued for, she had gotten work as a waitress for the Y. M. C. A., at which time she had "practically recovered."

The record discloses that Dr. McElwee, the first physician who waited upon plaintiff, testified by deposition, but his testimony is not set out in the abstract. Appellant, however, in its statement of the case, admits that Dr. McElwee's testimony as to what he found plaintiff's condition to be when he visited her the morning after the collision corroborated plaintiff's testimony with respect to her alleged injuries.

Plaintiff adduced Dr. Sheppard who examined her in November, 1930, and again early in May, 1932. He testified that he found that plaintiff was nervous, and that there was some rigidity of the muscles of her back on the right side.

Plaintiff's husband, Charles F. Toennies, testified that, when he returned from work on the afternoon of June 11, 1928, he found his wife in bed; that he examined her and found a bruise upon her back and a bruise across her abdomen; that Dr. McElwee came to see plaintiff the next morning; that plaintiff was confined to her bed for "several weeks."

The defendant adduced Kenneth Fordham, who testified that he was the motorman in charge of the street car in question; that he no longer worked for the defendant company; that he had resigned to take a better job. He stated that at the time of the collision "I heard a scream, but I don't know whether it was a woman or not." This witness said he recognized plaintiff as having been a passenger on the car, and that immediately after the collision he observed that plaintiff "was over the rail in front of the seat in which she was sitting." Upon being asked whether he had spoken to plaintiff after the collision, he replied: "I believe I asked her if she was injured." It further appears from the witness' testimony that after the impact he got off the car and helped extricate the driver of the wagon, who had been thrown to the street and upon whom the horse attached to the wagon had fallen.

Cornelius J. Dugan, a witness for defendant, testified that he was the conductor of the street car; that, when the collision occurred, the driver of the wagon was thrown to the street and injured; that he (the conductor) had gotten out of the street car to help get the driver of the wagon out from under the horse, which had been knocked down and had fallen upon the driver of the wagon. The witness testified that no one in the car claimed to have been injured, and in response to the question, "Did you see any woman who complained to be injured?" he answered, "No, sir."

Adolph Eckerle, a witness for defendant, testified that he was a passenger on the street car in question; that he sat in the fifth seat on the left-hand side, and that after the collision he had remained in his seat until the car finally continued on its way. He was asked:

"Q. Did you hear anybody complain of being hurt? A. No, sir.

"Q. Did you see anybody up there against the front end of the car? A. No, I didn't.

"Q. At the time that car stood there up until it left, did you hear any woman,...