Traynor v. Wells

• Decision Date: 18 June 1925
• Docket Number: No. 19041.,19041.
• Citation: 273 S.W. 1100
• Parties: TRAYNOR v. WELLS.
• Court: Missouri Court of Appeals

273 S.W. 1100

TRAYNOR v. WELLS.

No. 19041.

St. Louis Court of Appeals. Missouri.

June 18, 1925.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published."

Action by Ellen Traynor against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. W. Bates, T. E. Francis; and Austin E. Park, all of St. Louis, for appellant.

Mark D. Eagleton, W. E. Moser, and Harry S. Rooks, all of St. Louis, for respondent.

DAUES, P. J.

This is an action for damages for personal injuries alleged to have been received by plaintiff while a passenger on one of defendant's street cars in St. Louis county. There was a verdict for $7,500. The lower court overruled a motion for new trial on condition of a remittitur of $2,500, and, this being complied with, there was a judgment for $5,000 in favor of plaintiff, from which defendant his appealed.

The petition relies upon the res ipsa loquitur doctrine, and alleges that plaintiff boarded defendant's street" car, and that before she became seated the car suddenly and violently, and in a very extraordinary and unusual manner, was jerked, jarred, and jolted so that plaintiff was thrown against the car and severely injured.

The answer is a general denial.

Plaintiff testified that "she was a widow, 60 years of age, and that on August 11, 1922, she boarded the car at Marion avenue as a passenger; that she had waited until the car came to a complete stop, and then got up on the running board securely with both feet, the car being a summer car, open on the sides for the entrance of passengers; that she gripped the handhold, and, while in the act of stepping into the car proper, the car "gave an awful jerk," and she was thereby thrown against the floor at the edge of the step, injuring her shin bone on the left leg. She further stated that she was familiar with the movement of street cars, having ridden on such cars every day, and that she was familiar with the ordinary movement and jerks that street cars ordinarily make, and that this jerk was different from the ordinary, jerks, being so severe that it threw her back. Further describing the movement of the car, she said: "It started and gave an awful jar. I never had anything like that before." After the injury she continued her trip to the city of St. Louis, but because of the severe pain in the leg she abandoned the purpose of the trip and went to the office of Dr. Muench, where she received medical treatment. When she reached the doctor's office the leg was very much swollen, and she was suffering excruciating pain. She was advised by the doctor to go to a hospital, but she did not do so, and returned to her home, where she was confined to her bed for several weeks. She subsequently called in other medical experts, and X-rays were taken, which disclosed, according to the testimony of the expert taking the pictures, that the injured leg showed a marked thickening of the bone, and also an injury to the surface covering the bone, or the periosteum. In addition to this, both the anterior and the posterior of the knee joint showed an injured condition. The picture w as taken on October 17, 1922, and it was the medical expert's opinion that the condition disclosed then "could be a permanent condition."

Dr. E. Kinder testified for plaintiff that he examined her on October 25, 1922, and that he found a swelling and tenderness to the left knee and shin bone at that time; that there was an enlargement of the bone that clearly could be observed by the eye; that the bone would continue to thicken; that the injury was permanent; and that plaintiff would in all reasonable probability require further medical attention.

The defendant's proof, as adduced through the motorman and the conductor of the car, was to the effect that there was no unusual movement of the car on the occasion in question. The conductor testified that no accident occurred in the manner alleged by plaintiff, but that plaintiff did not raise her foot high enough to reach the running board and had to be assisted in making the step; that plaintiff complained to him afterwards that she was hurt in getting on the car, but that she gave no further details.

Witness Clara F. Long testified for defendant that she saw plaintiff injured, but that same occurred as plaintiff started to get on the car; that her foot slipped,, and she struck her opposite leg on the running board; that she saw the conductor attempt to help plaintiff on the car; but that plaintiff remonstrated and got on the car by herself. Witness said she saw plaintiff leave the car limping somewhat. She further testified that the car did not jerk at the time plaintiff was injured.

Another passenger testified that he was on the car at the time, but that he did not see plaintiff fall or notice any unusual jerking of the car.

The first assignment of error challenges the court's action in refusing to give the jury an instruction in the nature of a demurrer to the evidence requested by defendant at the close of the case, and the argument is made that there is no substantial evidence that there was an unusual or any jerk of the car boarded by plaintiff while entering same; secondly, it is contended that plaintiff's story of the manner in which she fell and was injured is at war with the physical facts.

On the first proposition appellant relies chiefly upon the case of Elliott v. Chicago, M. & St. P. R. Co. (Mo. Sup.) 236 S. W. 17. In that case plaintiff was a passenger on a railroad train, and she testified that while standing up in the coach "there was a sudden starting or moving of the train, an awful jolt or jerk," and that she was thrown thereby, and that a few hours afterwards she suffered a miscarriage. The court there held that a statement that there was a severe jolt of the train conveyed no definite meaning and was not sufficient evidence that there was an unusual movement of the train, unless this testimony was corroborated by some other fact or circumstance. In that case there was a statement of the conductor that any jolting or jerking of a train sufficient to throw a passenger down would be very unusual and extraordinary, and because of such corroboration the Supreme Court said there certainly was sufficient evidence to take the case to the jury. It was pointed out in that case that there was no evidence of injury from the fall; that the mere fact of a miscarriage did not show any injury, since the miscarriage might have occurred from other causes.

We have very recently, in the case of Rhodes v. Missouri Pacific R. Co., 213 Mo. App. 515, 255 S. W. 1084, analyzed our understanding of the Elliott Case, supra, and we distinguished that case from the Rhodes Case because of the fact that plaintiff's statement that there was a sudden jerk of the train was corroborated by the fact that the plaintiff in that case did actually suffer a fracture of the collar bone, and by the testimony of another witness as to the unusual movement of the train. The Rhodes Case, therefore, clearly came within the rule of the Elliott Case.

However, in the recent case of Meyers, Respondent, v. Rolla Wells, Receiver, etc., Appellant, 273 S. W. 110, not yet officially reported, the Supreme Court again discussed the Elliott Case, and stated the rule to be that, although the only statement that there was an unusual, sudden, or violent jerk of the car is made by the plaintiff alone, yet the physical circumstances are to be considered, and that such bare statement together with the testimony that plaintiff fell out of the car, was enough to take the case to the...