Westervelt v. St. Louis Transit Co.

• Decision Date: 01 July 1909
• Citation: 121 S.W. 114,222 Mo. 325
• Parties: WESTERVELT et al. v. ST. LOUIS TRANSIT CO. et al.
• Court: Missouri Supreme Court

121 S.W. 114

222 Mo. 325

WESTERVELT et al. v. ST. LOUIS TRANSIT CO. et al.

Supreme Court of Missouri, Division No. 1.

July 1, 1909.

On Rehearing, July 12, 1909.

1. CARRIERS (§ 306) — COMPANIES LIABLE FOR INJURIES TO PASSENGERS — LEASE — EFFECT.

Where by an agreement between two street railroads one of them as lessee took possession of the tracks, cars, plant, and former business of the other, and continued to operate the road, the lessor company was thereby relieved of liability for the negligence of the servants and employes of the lessee resulting in injuries to passengers.

2. APPEAL AND ERROR (§ 1173) — JUDGMENT — REVERSAL — PARTIES.

Where a judgment was rendered in favor of a passenger in an action for injuries against both a lessor and lessee street railroad company, reversal as to the lessor company did not necessarily necessitate a reversal as to the lessee.

3. DAMAGES (§ 132) — EXCESSIVENESS — PERSONAL INJURIES.

Complainant when injured by the premature starting of a street car was about 50 years of age. While she had been ailing at spells, and some years before had been frightened by a runaway accident, and a year before had suffered a minor operation on her womb, her general health had been reasonably good, and she had been well able to perform her social duties and as a housewife, and had been reasonably free from pain. Her injury consisted of a wrench or strain affecting her spine in the small of her back and left hip, after which her health was broken, and she became an invalid, unable to perform any household work, and was cared for by nurses and physicians. The muscles on the left side of her back below the belt were weakened and diminished, producing an apparent curvature of the spine, and the left hip was atrophied and her left leg was also smaller and shorter than the other, and she walked with a cane. Her sleep and spirits were broken, and she was afflicted with nervous disorders of a serious character. Held, that a judgment for $6,000 was not excessive.

4. TRIAL (§ 252) — INJURIES — EVIDENCE WARRANTING.

In an action for injuries to a passenger by the premature starting of a car as she was endeavoring to alight, the court was not required to charge that the jury must find that a reasonable time to alight was not afforded plaintiff in order to entitle her to recover, where there was no evidence showing the length of time the car stopped, or that the time was reasonable.

5. CARRIERS (§ 303) — INJURIES TO PASSENGER — PREMATURE START — TIME TO ALIGHT.

A passenger is entitled to a reasonable time in which to alight.

6. CARRIERS (§ 321) — INJURIES TO PASSENGER — PREMATURE START — REASONABLE OPPORTUNITY TO ALIGHT — INSTRUCTIONS.

In an action for injuries to a passenger by the premature starting of a street car as she was in the act of alighting, the court charged that plaintiff could recover if the jury found that defendant's servant in starting the car neglected to observe the degree of care defined in a prior instruction as the care devolving on a carrier of passengers, but that the burden was on plaintiff to show that while she was in the act of alighting, but before she had reasonable opportunity to do so, it was suddenly started, etc. Held, that the court sufficiently charged on the issue whether plaintiff had been given a reasonable opportunity to alight.

7. CARRIERS (§ 303) — PREMATURE START — INJURIES TO PASSENGER — TIME TO ALIGHT — KNOWLEDGE OF CONDUCTOR.

Where a street car stopped to permit a passenger to alight, and she attempted to do so in the presence of the conductor, he was bound to know that she was in the act of alighting, and to operate the car accordingly.

8. TRIAL (§ 191) — INSTRUCTIONS — ASSUMPTION OF FACTS — INJURIES TO PASSENGER — PREMATURE START.

Where a street car passenger was injured by a premature starting of the car as she was endeavoring to alight in the immediate presence of the conductor, the court was justified in assuming as a matter of law that the conductor "had reason to suspect" that she was in the act of alighting.

9. TRIAL (§ 191) — INSTRUCTIONS — EVIDENCE.

In an action for injuries to a passenger by the premature starting of a street car as she was in the act of alighting, evidence held to support a clause in an instruction permitting the jury to find that the car started with a "sudden movement."

10. DAMAGES (§ 216) — PERSONAL INJURIES — INSTRUCTIONS.

In an action for injuries, the court charged that, if the jury found for plaintiffs, they should assess the damages at such a sum as would be reasonable compensation for any one or more of the following items of damage, if any, and the jury found the feme plaintiff had sustained or was reasonably certain to sustain in the future, as a direct result of defendant's act complained of, viz., pain of body or mind, injury to her nervous system, and permanent lameness or crippled physical condition, if any, resulting from the accident. Another instruction charged that if the feme plaintiff sustained an injury to her nervous system as a direct consequence of defendant's act, and that these had caused to her a hysterical condition which produced sensations of pain and suffering to her, then she could recover as part of her damages for her pain of mind reasonable compensation for such pain and suffering, if any, the jury found she already suffered, as well as for any suffering or pain which the jury found from the evidence she was reasonably certain to endure in the future. Held not objectionable as authorizing double damages for the same pain of body or mind and the same injury, and as allowing damages for mental distress disconnected from any injury.

Appeal from St. Louis Circuit Court; C. Orrick Bishop, Judge.

Action by Sarah J. Westervelt and another against the St. Louis Transit Company and United Railways Company of St. Louis. Judgment for plaintiffs, and defendants appeal. Reversed as to the United Railways Company of St. Louis, and affirmed as to the St. Louis Transit Company.

Boyle & Priest and T. E. Francis, for appellants. Richard F. Ralph and Barclay & Fauntleroy, for respondents.

LAMM, P. J.

Plaintiffs, Sarah J. and Peter D., are husband and wife. Defendants are common carriers of passengers for hire in St. Louis as street railway corporations. On December 19, 1899, after dark, Sarah rode as a pay passenger on a south-bound car on Virginia avenue. Claiming injuries through negligence of defendants while she was alighting from her car at the intersection of Virginia with Bowen street, she (uniting her husband) sued both companies counting on negligence and laying her damages at $30,000. Her petition states that "defendants" operated a line of cars running on Virginia avenue; that she was a passenger on "one of defendants' cars"; that "defendants agreed" to use care to carry her safely and to allow her to alight in safety at her destination. It is then alleged as follows: "Plaintiffs further state that whilst the said Sarah was in the act of alighting from defendant's said car at or near the intersection of Virginia avenue aforesaid and Bowen street, in said city, where said car had stopped to permit said Sarah to alight, said defendants carelessly and negligently caused the said car to start forward with a sudden movement, so that the said Sarah, while in the act of alighting from said car, was turned and jerked about and wrenched so as to produce the injuries to her to be mentioned presently. The direct effects of said negligence of defendants were," etc. (Here a grievous list of resulting ills and hurts are charged.) Defendants answered separately by general denial. The trial was to a jury. A verdict came in for $6,000. Unsuccessful motions for a new trial and in arrest were filed, and from a judgment rendered against both they appeal. Sufficient of the facts will appear in connection with points ruled. At the close of the plaintiffs' evidence in chief, defendants interposed separate demurrers, which were overruled and exceptions saved. At the close of the whole case, defendants renewed their separate demurrers, and saved exceptions to the second disallowance of them. Contentions made by the United Railways Company are distinct from those of the transit company, and separate briefs are filed by both sides in that regard. It will be convenient to preserve that line of cleavage in this opinion. On behalf of the United Railways Company error is assigned in refusing to direct a verdict and in giving an instruction (No. 6) on behalf of plaintiff to the effect that under the lease, ordinance, and other documentary evidence those operating the car in question "are to be considered as agents of both the defendant companies." On behalf of the transit company errors are assigned in giving instructions Nos. 1, 4, and 5. Further, it is insisted that the verdict is excessive.

1. Of the United Railways' appeal. There was testimony showing that the transit company was, in fact, running the car on which Mrs. Westervelt was a passenger. There is no proof that the United Railways Company had lot, part, or parcel in running it unless a certain agreement (introduced by plaintiffs) between that company, and the transit company, when judicially construed and interpreted, had the effect of making them joint operators of the car at that immediate time. But we have ruled on full argument and deliberation that the agreement could not be given that legal effect. Moorshead v. United Railways Co., 203 Mo. 121, 96 S. W. 261, 100 S. W. 611; Chlanda v. St. Louis Transit Co., 213 Mo. 344, 112 S. W. 249. In neither of those cases were there allegations resting on equitable doctrines or relating to fraud in the concoction or purpose of the lease, and none such are here. In those cases we construed the agreement whereby the transit company took possession of the tracks, cars, plant, and former business of the United Railways Company as a lease constituting the transit company the lessee and the United...