Waldopfel v. St. Louis Transit Co.

• Decision Date: 17 November 1903
• Parties: WALDOPFEL v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

77 S.W. 128

102 Mo. App. 524

WALDOPFEL v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

November 17, 1903.

CARRIERS—INJURY TO PASSENGER—DAMAGES — PHYSICIAN'S SERVICES — ABSENCE OF PROOF—APPEAL—BILL OF EXCEPTIONS—EXTENSION OF TIME.

1. Under Rev. St. 1899, § 728, limiting the power of the trial court to extend the time for filing bills of exceptions beyond the term of court at which exceptions are taken to cases wherein good cause is shown for the extension, it will be presumed, in the absence of a showing to the contrary, that the power was not abused where the court extended such time.

2. In an action for injuries to a passenger it was error to instruct the jury that they might add "a reasonable sum for medical attendance," where there was no evidence of any employment or charge, or of the value of the professional services rendered, and plaintiff herself testified that no bill had been rendered by the physician, and that she did not know what his bill was.

Appeal from St. Louis Circuit Court; John A. Blevins, Judge.

Action by Leonore Waldopfel against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehman, for appellant. Sheridan & Sheridan and Henry B. Davis, for respondent.

REYBURN, J.

The St. Louis Transit Company has appealed from a judgment of the circuit court of the city of St. Louis, rendered upon the verdict of a jury awarding her damages for personal injuries.

The portions of plaintiff's petition material, omitting formal averments, are thus set forth: "Plaintiff further states that on or about the 1st day of March, 1902, plaintiff, for value received, was accepted by the defendant as a passenger on its trolley car in charge of its agents or servants at the said intersection of Olive and Sixth streets in said city, to be safely carried by defendant to the said intersection of Ninth and Lynch streets, as aforesaid, and defendant thereby agreed and it became its duty as aforesaid to well and safely carry and transport plaintiff to said Ninth and Lynch streets as aforesaid, and plaintiff entered the trolley car of the defendant for the purpose of said transportation. But plaintiff says that defendant, unmindful of its duty in the premises, and in violation of its contract aforesaid, failed to carry plaintiff well and safely to the said Ninth and Lynch streets, but so carelessly and negligently conducted itself in the premises that defendant failed to provide a safe step from its trolley car, and failed to keep the mud off the step provided, that plaintiff, without any fault on her part, was, in alighting from the car of defendant, thrown from the car by reason of said unsafe step, and the mud collected thereon, and by reason of said fall plaintiff's clothes were destroyed, and plaintiff's ankle was wrenched so that plaintiff was confined to her bed for the space of six weeks, and plaintiff's nervous system was destroyed, and plaintiff was and is injured internally, and said injuries are permanent, and plaintiff has and will suffer great pain and anguish, and has and will in the future be put to great expense for medicine and medical attendance; all to her damage in the sum of twenty-five thousand dollars, for which, with costs, she asks judgment." The answer was a general denial, coupled with a special plea, which, in the view taken by us, may be dismissed without further consideration.

At the threshold of this case we are confronted by respondent's arraignment of the bill of exceptions of appellant that section 728, Rev. St. 1899, limited the power of the trial court to extend the time for filing bills of exceptions beyond the term of court at which the exceptions are taken to such cases wherein good cause is shown for the prolonging. In Dodd v. Guiseffi, ...