La Vigne v. St. Louis Public Service Co., 38937.

• Decision Date: 05 June 1944
• Docket Number: No. 38937.,38937.
• Citation: 181 S.W.2d 541
• Parties: LA VIGNE v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Supreme Court

181 S.W.2d 541

LA VIGNE v. ST. LOUIS PUBLIC SERVICE CO.

No. 38937.

Supreme Court of Missouri, Division No. 1.

June 5, 1944.

Rehearing Denied July 3, 1944.

Appeal from St. Louis Circuit Court; Robert J. Kirkwood, Judge.

Action by Jessica La Vigne against St. Louis Public Service Company to recover for personal injuries sustained by plaintiff while a passenger on defendant's streetcar. Verdict and judgment for defendant, and plaintiff appeals.

Judgment reversed and cause remanded.

Mark D. Eagleton, James A. Waechter, and Arthur J. J. Bohn, all of St. Louis, for appellant.

Barak T. Mattingly and Fred Berthold, both of St. Louis, for respondent.

BRADLEY, Commissioner.

Action to recover $35,000 for personal injury; verdict and judgment for defendant; plaintiff appealed.

Plaintiff proceeded under the res ipsa loquitur rule; alleged that she was a passenger on defendant's street car, and "that said street car did then and there, in an unusual and extraordinary manner, suddenly and violently jolt and lurch, and plaintiff was directly thereby caused to be thrown down and to sustain" the injuries complained of. The answer was a general denial.

Error is assigned on defendant's instruction 3, and on argument of counsel.

Plaintiff testified that she was 52 years old; resided at 7008 Forsythe Boulevard, University City; that on April 18, 1941, about 2:15 p. m., she boarded defendant's westbound street car at 7th and Olive, St. Louis, to go home; sat down on the right (north) side of the car 3 or 4 seats to the rear of the exit door in the center; that at Grand Avenue she, because it was raining in at the window in front of her, changed to a seat on the south side of the car immediately to the rear of the exit door; that she intended to alight at Big Bend Road at about 7000 west; that the accident occurred near Des Peres Avenue, about 6000 west. She further testified:

"On this occasion, as I approached Des Peres Avenue on this street car, I was seated alone about three or four inches from the right edge of the seat, and there was no one seated opposite me across the aisle. As the street car approached Des Peres Avenue, I experienced some very sudden jolts, bouncing up and down in the car, causing my seat to bounce up and down two or three inches out of the seat of the car, and, as I was reaching forward to grab the back of the seat, I didn't quite make it, when a very sudden, unusual and terrific lurch from side to side threw me out of my seat, toward the right, into the aisle, where I landed on my buttocks with a thud, and almost simultaneously went over on my right side and back."

Casey R. Tucker, defendant's witness and motorman on the street car, testified: "I was operating a new streamline car, going west on the right of way, about 150 feet east of Des Peres Avenue, going about twenty to twenty-five miles per hour at the time of the occurrence. It was raining. * * * I observed the tracks 150 to 200 feet east of Des Peres Avenue on the date of April 18, 1941, and on that date the condition of the track was good, so far as I observed; that stretch of track was straight track without any curves. When the street car reached a point about 125 to 150 feet east of Des Peres Avenue, I heard a buzzer signal from some passenger that they wanted to alight, and I immediately looked up into my rear view mirror and saw a woman standing up in the aisle, about one or two seats back from the exit doors, on the left side of the car, facing the front. She immediately afterwards slumped down into the aisle. At the time the buzzer was rung and when I looked into my mirror, there was nothing unusual, abrupt or sudden about the manner in which the car was being operated on the rails. It was not bouncing up and down, nor suddenly lurching from side to side, and was going at the customary and usual speed. That time I did not apply the brakes suddenly or cause any sudden stopping of the street car. I do not know whether I just applied the brakes, or whether I applied them before or just after I looked into the mirror and saw the woman, but I stopped the street car at Des Peres Avenue in about 125 to 150 feet after applying the brakes. There was nothing abrupt or unusual or sudden that I did with the street car at the time I looked into my mirror and saw this lady on her feet and at the same time slumping. After I stopped my street car, some woman alighted at Des Peres Avenue. At that time Mrs. La Vigne was still lying on her right side on the floor of the car, with her head toward the rear of the car. I went back and saw two men picking her up and assisting her, and I spent four or five minutes getting her name and the names of passengers. I then proceeded to Big Bend, where the two men passengers helped Mrs. La Vigne off of the car."

Five passengers on the street car, witnesses for defendant, testified to the effect that there was no jolt, bounce, lurch or sudden stop. One of these testified: "I saw Mrs. La Vigne before she fell to the floor of the street car. I was looking toward the front track and the lady came from behind me and sat down on the same side of the car, directly opposite me, on the left hand side. My recollection is that somebody signaled the car to stop and this lady stood up. I paid no further attention to her, presuming that she was going to get off, until my attention was drawn to the fact that she was slumping down into the aisle — I didn't see her when she began to fall, she just collapsed and fell forward, like she had fainted."

Defendant's instruction 3 follows: "The court instructs the jury that the defendant, in receiving plaintiff upon its car as a passenger, did not thereby...