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

• Decision Date: 02 June 1914
• Docket Number: No. 13646.,13646.
• Citation: 183 Mo. App. 642,167 S.W. 655
• Parties: WELLMAN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

167 S.W. 655

183 Mo. A. 642

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

No. 13646.

St. Louis Court of Appeals. Missouri.

June 2, 1914.

TRIAL (§ 62)—RECEPTION OF EVIDENCE—ORDER OF PROOF—EVIDENCE IN REBUTTAL.

Plaintiff's evidence tended to show that while he was on a street crossing a street car standing immediately south of the crossing was backed against him. Defendant's witnesses testified that plaintiff was on the street car, and was injured attempting to alight while it was moving. This theory was in no way suggested by plaintiff's evidence, and there was merely an allegation of contributory negligence, without any allegation of the facts constituting negligence. Evidence in rebuttal that plaintiff was not on the car or on any street car that day, and that he did not step off a moving car as testified, was excluded on defendant's objection that it was evidence in chief. Held, that such evidence, if cumulative to a certain extent, was not cumulative on the immediate issue as to how and where plaintiff was injured, and should have been admitted.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

Action by John Wellman against the United Railways Company of St. Louis. From an order granting a new trial after a verdict for defendant, defendant appeals. Affirmed and remanded.

E. C. Adkins, W. Blodgett Priest, Chauncey H. Clarke, Boyle & Priest, and T. E. Francis, all of St. Louis, for appellant. John J. O'Brien and McShane & Goodwin, all of St. Louis, for respondent.

NORTONI, J.

This is an appeal from an order of the court setting aside a verdict for defendant, and awarding plaintiff a new trial. The suit is for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. At the trial before a jury, the finding was in favor of defendant. The court set the verdict aside on plaintiff's motion for a new trial, on the ground that it had erred in excluding certain evidence offered by plaintiff in rebuttal, and the question for consideration here relates to that matter.

According to the averment of plaintiff's petition, he was crossing Sixth street in St. Louis to the eastward at the usual crossing place for pedestrians on the north side of Washington avenue when defendant suddenly, and without warning, backed one of its street cars then standing immediately south of the crossing upon him. In this wise, it is said, plaintiff received a broken hip and other injuries, on account of which he seeks to recover.

The answer consists of a general denial and a mere general averment that whatever injuries plaintiff received were occasioned from his own negligence, and not by the fault of defendant.

The evidence for plaintiff tends to prove that there were several street cars standing still about the crossing of Sixth street and Washington avenue, and the rear, or north, end of the car which occasioned his injuries stood very near by, south of the crossing for pedestrians on the north side of Washington avenue. Plaintiff says that while the car was thus standing motionless, he walked, following two men immediately before him, to the eastward on the foot crossing in the act of crossing Sixth street on Washington avenue. As he stepped upon defendant's car track immediately in the rear of the standing car, such car was suddenly thrust backward upon him, without warning whatever. In this manner he was run upon and dislodged from his footing upon the street with such force as to inflict the injury complained of— that is, a broken hip.

The evidence on the part of defendant denies plaintiff's theory of the case in toto, in that it goes to the effect that plaintiff was upon the street car and walked off of it while moving so as to occasion his injury. Defendant's witnesses say that no street car was standing in the street at Washington avenue and Sixth street, and that none backed upon plaintiff as he was crossing Sixth street at that point. Several witnesses, and, indeed, all of them for defendant, say that plaintiff boarded defendant's Tower Grove car about a block north of the point at which he says he was injured, and, upon discovering the fact that he had boarded the wrong car, notified the conductor to...