Veiss v. United Rys. Co. of St. Louis

• Decision Date: 02 June 1914
• Docket Number: No. 13642.,13642.
• Citation: 167 S.W. 615,184 Mo. App. 30
• Parties: VEISS v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

167 S.W. 615

184 Mo. A. 30

VEISS v. UNITED RYS. CO. OF ST. LOUIS.

No. 13642.

St. Louis Court of Appeals. Missouri.

June 2, 1914.

1. STREET RAILROADS (§ 112) — PERSONAL INJURIES — LIABILITY — CAUSE OF INJURY.

A woman who was dragged by a street car for some distance cannot recover for injuries sustained by reason of the negligence of those operating the car in not stopping it as soon as possible after learning of her peril, where there is no evidence to show what part of her injuries were occasioned by the dragging for the distance in which it was not possible to have stopped the car in the exercise of due care, and which injuries were caused by the dragging beyond that distance.

2. EVIDENCE (§ 506) — PERSONAL INJURIES — OPINION EVIDENCE.

In an action for injuries received by a woman who was dragged by a street car, where there was no controversy that she had been dragged and seriously injured, testimony by her physician that a subsequent miscarriage resulted from the accident was not inadmissible as an opinion upon the question which the jury was to determine.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Anna Veiss against the United Railways Company of St. Louis. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

Boyle & Priest, Paul U. Farley, and Elmer C. Adkins, all of St. Louis, for appellant. John J. O'Connor, of St. Louis, for respondent.

REYNOLDS, P. J.

Action by plaintiff for damages sustained by being caught in a wire loop attached to a street car and afterwards being dragged some distance thereby.

There are two separate acts of negligence charged in the petition. One in negligently permitting the wire to hang from the rear end of the car and drag upon the ground and the other for negligently permitting the car to continue to run, dragging the plaintiff, after those in charge of the car had actual knowledge of her perilous position.

The answer was a general denial, with the averment that whatever injuries, if any, plaintiff sustained, were caused by her own carelessness and negligence.

Plaintiff, on November 25th, 1910, boarded a northbound car on Broadway at Washington avenue, in the city of St. Louis. When the car reached Angelica street, it was stopped to allow passengers to alight. Plaintiff alighted from the east side of the car and started to cross the street in the rear of the car, intending to go to the west side of Broadway. When she was at about the middle of the rear end of the car it was put in motion. Plaintiff at once discovered that she had stepped into a loop of wire, which was attached to the rear bumper or coupler of the car, with her left foot, so that the loop caught her around the ankle of that foot and, the car continuing in motion, she was dragged on the ground a considerable distance, the distance of the dragging being in sharp dispute; some witnesses for plaintiff putting it as far as 140 feet; those for defendant placing it at from 25 to 40 feet, plaintiff herself giving it at 100 feet. The instant she discovered that her ankle or foot was caught in this looped piece of wire and felt herself dragged on the ground, and, as she testified, before the car had gone any distance, she cried out in a very loud voice to those in charge of the car, to stop the car, that she was being dragged. At that same instant, according to the testimony, a man on the car told the conductor that the car was dragging a woman. Bystanders, as well as passengers on the car, seeing plaintiff's peril, also shouted and called out that a woman was being dragged. According to the testimony of the conductor, when he was told by a passenger that some one was being dragged, he at once gave the motorman the signal to stop, the car stopping after having gone not to exceed 20 or 25 feet. To the contrary, a number of witnesses for plaintiff testified that the car did not stop after the alarm had been given, until it had dragged her 100 or 120 feet further. Plaintiff testified that she had remained conscious, that she kept her senses, until she was dragged 80 feet; that when she had been dragged about that distance she lost consciousness.

There was testimony to the effect that the employés of defendant in charge of the car had made no examination of the rear of the car from the time it was taken out of the shed to go upon its run until the occurrence of the accident, the testimony being to the effect that this wire, including the loop was something over 4 feet long, extended about that length from the rear of the car, and that the loop, something over a foot long, trailed behind the car on the ground and in such a position that any one looking at the rear of the car could easily have discovered its presence.

A witness for plaintiff, who was a passenger on the car, testified that she boarded the car at 2600 South Broadway, a distance of about four miles from the place where the accident occurred to plaintiff, and that she (the witness), in boarding the car, saw this piece of wire projecting beyond the rear of the car and dragging on the ground.

This particular car had run about 8 miles from the time it left the shed until the accident occurred to plaintiff. There is no evidence in the case as to how the wire became attached to the car coupling.

The evidence in the case, without contradiction or contest, showed that the injuries sustained by plaintiff were of a very serious character. When plaintiff was lifted from the ground she was escorted into a drugstore in the immediate vicinity, kept by a Dr. Kohromel, who was also a practicing physician. He testified that between six and seven o'clock on the evening of the day of the accident, plaintiff was brought into the store by a police officer and some other gentlemen. She seemed to be almost out of her mind, suffering from shock, was "awful excited," and after making an examination the doctor advised that she be taken home. That was done and about twenty minutes later the doctor visited her at her home and examined her, taking charge of the case as her physician. Describing the injuries to her person, and that she was suffering great pain, and that swelling set in in the ankle and in the muscles of her hip and back and side, she being taken with a severe hemorrhage a few days afterwards, he discovered, about December 4th, that she had sustained a miscarriage between November 23d and that date. This physician did not see the accident. While being examined as a witness for plaintiff, he was asked this question by her counsel, referring to plaintiff: "Now, assuming that she was a healthy and strong woman, and able to work, and working every day, and assuming that she had been, as you say, something like a month or a month and a half — in the second month, pregnant, what would you say with reference to what caused that premature birth? Would you say that that was one of the physical results of the accident, and caused by the shock and injury for which you treated her on the 25th day of November?" This was objected to by counsel for defendant, "on the ground that it is asking this witness to invade the province of the jury; asking him to determine the question that is for the determination of the jury." Objection being overruled, defendant duly excepting, the witness (the doctor) answered, "Yes, sir."

The trial was before the court and a jury and at the conclusion of the evidence, which developed the facts as above stated, the court, after refusing an instruction asked by defendant that plaintiff could not recover gave three instructions at the instance of plaintiff and three of its own motion. As to these latter, while no error is here assigned to them it is well to say that in the first of them the court told the jury that it is admitted that the car mentioned in the evidence was owned and operated at the time in question by defendant; that the wire mentioned in the evidence was attached to the rear of the car; that plaintiff was a passenger on the car; that she alighted therefrom and started to cross the track on which the car was running at the rear end thereof, when the wire attached thereto caught her and dragged her behind the car.

Of the three instructions given at the instance of plaintiff, the first, numbered 2, was on the assignment of negligence in permitting the wire to hang from the car and drag along the ground in the rear of the car, telling the jury that defendant was liable for the accident if the employés of defendant knew or might have known of its presence; another, numbered 5, was as to the measure of damages. No error is here assigned to either of these.

The only instruction given at the instance of plaintiff upon which error is assigned is that numbered 3. This, in substance, told the jury that although they might believe from the evidence that defendant had no knowledge of the...