Vortriede v. St. Louis Public Service Co.

• Decision Date: 04 April 1933
• Docket Number: No. 22258.,22258.
• Citation: 58 S.W.2d 492
• Parties: VORTRIEDE v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

58 S.W.2d 492

VORTRIEDE v. ST. LOUIS PUBLIC SERVICE CO.

No. 22258.

St. Louis Court of Appeals. Missouri.

April 4, 1933.

Rehearing Denied April 18, 1933.

Appeal from St. Louis Circuit Court; Albert D. Nortoni, Judge.

"Not to be published in State Reports."

Action by Margaret Vortriede against the St. Louis Public Service Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

T. E. Francis and B. G. Carpenter, both of St. Louis, for appellant.

Charles B. Williams and Leo P. Ehrhard, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff on August 22, 1928, while in the act of alighting from one of defendant's street cars. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $2,500; and, from the judgment rendered, defendant has duly appealed.

Plaintiff's evidence disclosed that, as she was stepping down out of the car, her foot slipped upon a tobacco quid which was lying upon the step, causing her to fall out into the street, and to receive the injuries for which she has sued.

There is no question about the sufficiency of the petition, and it will suffice to say that the issues were drawn in the court below upon a general denial.

The issue in this court hinges principally upon the question of the sufficiency of the proof of scienter, that is, whether the evidence was such as to have warranted the jury in finding that the quid had been upon the step for a sufficient length of time as to have put defendant's agents upon constructive notice of its presence, and to have allowed them the opportunity to have removed it before plaintiff stepped upon it and was injured.

The principal witness for plaintiff was her husband, who followed her off the car upon being apprised of the accident. He testified that he saw the quid upon the step, along with a mark which indicated where plaintiff's foot had slipped upon it; that the moisture in the quid was apparent, especially in the portion that had been stepped upon, though it was drying out on the side; and that in his opinion, judging by the appearance of the quid, it had been on the step about forty-five minutes.

The husband further testified that he was employed in a drug store adjacent to the cigar counter; that he had occasions every day to observe conditions around the cigar counter where customers spit and threw tobacco quids upon the floor; and that his experience in dealing with such conditions, it being a part of his duty to clean the floor, had enabled him to form an opinion from the appearance of a quid as to the approximate length of time it had been upon the floor.

Now there is no doubt that, in order to render a carrier liable for an injury to a passenger from a foreign substance in its car or on the steps, it must appear that the employees knew, or should have known, of the presence of the danger in time, in the exercise of due care, to have removed it before the occurrence of the accident. Tevis v. United Rys. Co. (Mo. App.) 185 S. W. 738, 740; Jones v. St. Louis-S. F. Ry. Co., 222 Mo. App. 1220, 5 S.W.(2d) 101.

In the Tevis Case, supra, this court said: "We do not intend to be understood as holding that street car employees are not required to exercise a very high degree of care toward keeping the cars and steps free from foreign substances which may entail injuries upon the passengers. In this the operatives of the street car may be regarded differently from those operating a railroad train which only stops at stations miles apart. Inasmuch as street cars take on and discharge passengers at almost every corner, it would seem that the rule of high care probably required a greater measure of diligence in respect to such matters than that concerning railroad trains, which, it is said, need not stop en route between stations to clear ice and snow from the steps."

In its argument upon the point of the demurrer to the evidence, defendant recognizes the force of the testimony of plaintiff's husband upon the question of scienter, but asserts that such testimony was totally incompetent and valueless upon that issue, in that the subject of the age of the quid was not one for expert evidence; that in any event the husband was not shown to have been qualified to testify as an expert; and that, under the husband's own admission on the stand, his opinion regarding the age of the quid was nothing but a guess.

It must be borne in mind that the husband's testimony was not expert testimony in the sense that it was given in response to hypothetical questions, but instead it was mere opinion evidence, which rested for its value upon facts and circumstances which were fully detailed in the evidence. The statement of the husband regarding the apparent age of the quid was after all but the statement of an impression from collective facts which, in the very nature of things, could not be reproduced in their entirety so as to have presented to the jury the full picture impressed on the mind of the witness....