Tueteberg v. St. Louis Public Service Co.

• Decision Date: 08 September 1931
• Docket Number: No. 21534.,21534.
• Citation: 41 S.W.2d 956
• Parties: TUETEBERG v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

41 S.W.2d 956

TUETEBERG v. ST. LOUIS PUBLIC SERVICE CO.

No. 21534.

St. Louis Court of Appeals. Missouri.

September 8, 1931.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Marie Tueteberg, an infant, by Gertrude Tueteberg, her next friend, against the St. Louis Public Service Company. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

T. E. Francis and R. S. Bull, both of St. Louis, for appellant.

Hay & Flanagan, of St. Louis, for respondent.

BECKER, J.

Plaintiff, by next friend, obtained judgment against the defendant in her action for personal injuries alleged to have been sustained on December 23, 1927, while boarding one of defendant's street cars on the Kirkwood-Ferguson Line. Defendant in due course appeals.

Plaintiff's amended petition alleges that while she was on defendant's street car she was caused to slip and fall on rubbish which was on the floor of the street car. The negligence charged against defendant is that it suffered and permitted said rubbish to remain on the floor of the car when it knew, or by the exercise of the highest degree of care would have known, of the presence thereof, and that passengers would be apt to slip and fall thereon and thereby injure themselves, in time, thereafter, by the exercise of the highest degree of care, to have removed the same and thus have avoided plaintiff's injuries.

Defendant's answer was a general denial.

Defendant below, appellant here, urges that its instruction in the nature of a demurrer offered at the close of the entire case should have been given because there was no proof, other than by inference, that there was any fruit peelings or rubbish at the place where plaintiff stepped, and no proof, other than by inference, that her fall and injury were caused by her slipping on fruit peelings or rubbish. The argument is presented that the causal connection between defendant's alleged negligence and plaintiff's fall and injury was not proved, but was left entirely to conjecture and speculation and therefore liability was not established.

We have reached the conclusion that plaintiff made out a case for the jury and that the demurrer was well ruled.

Plaintiff herself testified that in boarding the street car she first placed her right foot on the step and then raised her left foot onto the platform and was in the act of bringing her right foot up to the platform when she fell. She definitely stated that she did not stub her toe, neither did she trip, but that her foot slipped out from under her and she fell flat.

On cross-examination plaintiff testified that on the car in question there was a seat that "goes around the back end of the street car, * * *" and that "there was paper and orange peelings in the back around the seat there"; that there were more than a dozen pieces of orange peeling varying from one to two and one-half inches, but she could not say that she had slipped on an orange peeling.

Ruth Tueteberg, plaintiff's sister who accompanied her at the time she met with her injuries, testified that:

When she helped plaintiff after her fall, she noticed a long spot on the floor of the car where her sister had slipped; "it was something that had been mashed on the floor.

"Q. Now, there was something that was mashed — that you describe as something that was mashed, was that on the place where your sister fell? A. Yes, sir."

She stated that there were orange, apple, and banana peelings on the floor in the rear of the car; that after she and the plaintiff went to the front of the car she noticed a spot on the bottom of plaintiff's shoe that was still wet.

We quote the following testimony of this witness on cross-examination:

"Q. With reference to getting on the car there — you did not see anything did you, that caused your sister to fall, did you? A. Yes, sir, I did.

"Q. You didn't see any orange peeling right there in front of the door? A. I saw some contents on the floor.

"Q. What is that? A. Small contents on the floor that had been ground into the floor.

"Q. Well, you didn't know what that was, did you? A. It was some sort of fruit.

"Q. It was some sort of fruit? A. Yes, sir.

"Q. You told the jury a while ago, there was all kinds of fruit on the back there? A. Yes, sir.

"Q. Now you say, now, I believe, that it was due to something that you saw there with reference to — looked like some kind of mashed fruit or something that your sister slipped on? A. Yes sir. * * *

"Q. You could tell by the spot on the floor? A. Yes, sir."

Plaintiff herself testified that she did not stub her toe, trip, or "anything like that," but that she slipped and fell; and her sister testified that she saw mashed fruit substance on the floor of the car on the very spot where plaintiff's foot had slipped, and testified further that she found a wet mark on the bottom of plaintiff's shoe. Often circumstances alone are sufficient to make out a case. Hardwick v. R. R. Co., 181 Mo. App. 156, 168 S. W. 328; Kelly v. R. R. Co., 141 Mo. App. 490, 125 S. W. 818. Granting plaintiff, as we must, the reasonable inferences that may be drawn from the affirmative facts testified to by plaintiff and her sister, we are of the opinion and so hold that plaintiff made out a case for the jury and that the demurrer was well ruled. State ex rel. City of St. Charles v. Haid et al. (Mo. Sup.) 28 S.W.(2d) 97, loc. cit. 102; Johnston v. R. R. Co., 150 Mo. App. 304, 130 S. W. 413; Tabor v. Bolt & Nut Co. (Mo. App.) 274 S. W. 911, loc. cit. 916.

The question as to what is the proximate cause of an injury is one for the jury, if the evidence is sufficient to support it (Wright v. Packing Co. [Mo. App.] 199 S. W. 754; De Late v. Biscuit Co. (Mo. App.) 213 S. W. 885), and such evidence may be circumstantial provided reasonable inferences may be drawn therefrom which will support the conclusion that the injury was from the cause complained of rather than from some other cause. Dunlap v. R. R. Co., 145 Mo. App. 215, 129 S. W. 262; Titus v. Delano (Mo. Sup.) 210 S. W. 44.

Next, complaint is made of plaintiff's instruction numbered 1, which reads as follows: "The court instructs the jury that if you believe and find from the evidence that on or about the 23rd day of December, 1927, the defendant owned and operated the street car mentioned in the evidence as a common carrier of passengers for hire, and if you find and believe that the floor of said car had rubbish thereon and if you believe that the plaintiff was in the exercise of ordinary care for her own safety, and if you believe that the plaintiff boarded said car and stepped upon said rubbish, if any, and slipped and fell, and was injured, and if you believe that the defendant knew or by the exercise of the highest degree of care...