Whalen v. St. Louis Public Service Co.

• Decision Date: 21 November 1961
• Docket Number: No. 30708,30708
• Citation: Whalen v. St. Louis Public Service Co., 351 S.W.2d 788 (Mo. App. 1961)
• Parties: Ruth WHALEN, Plaintiff-Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 788

351 S.W.2d 788

Ruth WHALEN, Plaintiff-Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Defendant-Respondent.

No. 30708.

St. Louis Court of Appeals, Missouri.

Nov. 21, 1961.

Samuel A. Goldblatt, William L. Mason, Jr., St. Louis, for appellant.

William Corrigan, St. Louis, for respondent.

BRADY, Commissioner.

The appellant, hereinafter referred to as plaintiff, brought this action against the respondent, hereinafter referred to as the defendant, for personal injuries which she averred she sustained when water and sand on the steps and around the fare box of defendant's streetcar caused her to fall. This appeal followed the trial court's action in sustaining the defendant's alternative motion for a new trial.

The plaintiff pleaded that the defendant was negligent in causing, allowing, or permitting the entrance steps and aisle of the car to '* * * have upon them mud, water and sand, to such extent that said surfaces were unduly, unreasonably and dangerously slick and slippery and not reasonably safe for the use of defendant's passengers, * * *.' Plaintiff testified in her own behalf and also offered the testimony of the witness Dickens. Plaintiff's testimony was that the day of the occurrence was clear and dry; that as she boarded the streetcar with her left foot still on the pavement and her right foot on the step, she saw sand and water on the step and the aisle around the fare box; that she stepped up with her left foot to the step, holding on to the rail, and then with her right foot to the platform; that when she did so she felt '* * * something under my foot, gravel and water' and she slipped and fell forward to her knees, striking the right side of her head on the rail that is directly behind the motorman. Plaintiff further testified that the streetcar shed was about two or three blocks south of where she boarded the car, although on cross-examination she stated she did not '* * * remember saying a car shed' and did not know if there was a garage or anything like that there, and that the floor of the streetcar was covered with a 'black mat.'- Dickens' testimony was that about two or three blocks away from where he boarded the streetcar is a streetcar shed at the start of the loop of the Jefferson streetcar line; that when he boarded the streetcar, one block before the plaintiff boarded it, he looked at the floor which was covered with a 'black carpet' and noticed the floor was wet and had sand on it as if someone had been sweeping; that he took the seat behind the motorman on the left side of the car, and that he saw the plaintiff fall. On cross-examination, this witness was cross-examined extensively concerning a prior statement he had given. This signed statement differed from his testimony at the trial in that it appeared therein that he had stated that he and the plaintiff got on the car together, that he saw plaintiff fall backward after she had paid her fare; and caught herself by grabbing the back of a seat, never falling to the floor; that he didn't pay any attention to the steps when he got on the car; and that he sat in the third or fourth seat on the right. The witness testified at the trial that the person taking the statement had not written down what he (Dickens) told him, although he identified his signature thereon, and signed beneath the words, 'This statement is true' thereon. This was plaintiff's case.

The defendant put on the motorman's son, who explained his father's failure to appear by testifying that the motorman had suffered a stroke with resulting paralysis on his left side and speech impairment. The motorman's deposition was read into evidence, and the pertinent evidence therefrom was that he was the motorman on this streetcar on the day of the occurrence, that there was no sweeping out of the streetcar or cleaning it at the south end which he had just left before this occurrence; that there was no water or other material on the landing which was clear as were the steps; that the plaintiff '* * * didn't get a good footing on the steps and her foot slipped off and she hit her leg against the step'; that she did not fall; that plaintiff told him she hurt her leg; and that her head did not strike anything. Defendant's other evidence was given by the witness Hill, who took the statement of Dickens. He testified that he took the statement by asking questions and taking down the answers; that, in response to his request, Dickens appeared to read the statement and signed at the bottom of each page and that the statement was true; and the Dickens deleted a statement from what he had written and signed his name to the deletion. He was asked specifically about the statements which were at variance with Dickens' trial testimony, and answered that each was in the statement. On cross-examination, he was asked whether or not it was his work to take statements and investigate claims and stated that it was; that he wrote the statement except for the signature and that it was put down as Dickens gave it to him.

The defendant presented motions for a directed verdict at the close of plaintiff's case and at the close of all the evidence, which are almost identical and which were overruled by the trial court. Insofar as these motions are here concerned, they presented the contention that plaintiff failed to make a submissible case. While there is no assignment of error dealing with the instructions, the theory of plaintiff's submission is of importance to this appeal. Plaintiff's verdict directing instruction was Instruction No. 1, which hypothesized certain preliminary facts and then contained the following submission:

'* * * that there was a mixture of sand and water on the floor of said car near said farebox; that by reason of the presence of said mixture, the said floor at said place was unduly, unreasonably and dangerously slick and slippery; that by reason of such slick and slippery condition, the floor there was nor (sic) reasonably safe for people to step upon it at said place; that defendant, through its agents and servants, knew, or by the exercise of the highest degree of care could have known, of the existence of said unsafe condition for a sufficient length of time before Ruth Whalen got on that car to have remedied said unsafe condition by the exercise of the highest degree of care to make the floor there reasonably safe before Ruth Whalen got on that car; that defendant was thereby negligent; that Ruth Whalen stepped in and on said mixture; that she fell; that her said fall was directly caused by such unsafe condition and by such negligence of the defendant; * * *.'

The jury returned a verdict for plaintiff in the amount of $2,750. The defendant filed a lengthy motion for a new trial which assigned as grounds therefor, among others, that the verdict was against the weight of the evidence, that the plaintiff had failed to make a submissible case, and

'13. That a fraud or deceit was practiced by the plaintiff on this defendant by the testimony of plaintiff or witness.

'14. That a mistake has been commited (sic) by plaintiff or witness, or there has been perjury committed by plaintiff or witness.'

The trial court overruled the motion for a directed verdict, and sustained the motion for a new trial for the specific reason that the verdict was against the weight of the evidence, thereby overruling the other grounds presented, Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24, and cases cited at [11, 12], local citation page 32. The Loveless case is also of importance on the question of the grounds for new trial stated in paragraphs 13 and 14 of the motion therefor which are not before us on this appeal. The trial court's order reads,

'Verdict and judgment in favor of plaintiff and against defendant is hereby set aside, vacated and for naught held. Cause ordered reinstated on docket for new trial and further proceedings.'

Although the trial court did not in any way limit the new trial it granted, counsel, it is stated in the briefs and in the transcript, agreed not to include in the transcript plaintiff's or defendant's medical testimony.

Plaintiff contends that the trial court abused its discretion in granting the defendant a new trial on the grounds that the verdict was against the weight of the evidence. The respondent disputes this contention, and in addition suggests that plaintiff failed to make a submissible case, and therefore the trial court should have sustained the defendant's after trial motion for judgment in accordance with its motion for directed verdict for the reason that the plaintiff failed to prove '* * * that the alleged unsafe condition existed prior to plaintiff's fall', and also for the reason that plaintiff was guilty of contributory negligence as a matter of law for failing to see what respondent contends, if it existed at all, was an obvious condition. Since the defendant's contentions as to plaintiff's failure to make a submissible case were duly preserved in the trial court, it is entitled to have this matter considered even though it filed no appeal. Wilhelm v. Haemmerle, Mo., 262 S.W.2d 609 at loc. cit. page 611. Since this matter is fundamental and decisive in the case, we will first...