Williamson v. St. Louis Public Service Co., 42832
| Decision Date | 13 October 1952 |
| Docket Number | No. 1,No. 42832,42832,1 |
| Citation | 363 Mo. 508,252 S.W.2d 295 |
| Parties | WILLIAMSON v. ST. LOUIS PUBLIC SERVICE CO |
| Court | Missouri Supreme Court |
Mattingly, Boas & Richards and Lloyd E. Boas, St. Louis, for appellant.
Rene J. Lusser, St. Louis, for respondent.
Action for damages for personal injuries alleged to have been sustained on account of defendant's negligent failure to provide plaintiff a reasonably safe place in which to alight from one of defendant's busses at the northwest corner of the intersection of Kingshighway and Lindell boulevard in the city of St. Louis. Verdict and judgment were for plaintiff for $10,000 and defendant has appealed.
On April 2, 1949, at about 11 a. m., plaintiff was a fare-paying passenger on one of defendant's southbound busses on Kingshighway in the city of St. Louis. She intended to alight at Lindell boulevard in said city. After the bus stopped to discharge passengers at that place, plaintiff proceeded to alight from the front entrance door and, as she stepped down to the street with her right foot, she sustained three fractures in her right ankle. She went down into a half sitting position and the bus driver came out and placed her on the step of the bus. She remained there until the police arrived and took her to Barnes hospital.
Appellant first contends that the court erred in overruling defendant's motion for a directed verdict. Appellant says (1) that there was no substantial evidence that there was a dangerous defect in the street at the point where plaintiff fell, or that she stepped into the defect and was thereby caused to fall; and (2) that plaintiff was guilty of contributory negligence as a matter of law. We must review the evidence in a light most favorable to the plaintiff and we will disregard the defendant's evidence unless it tends to aid the plaintiff's case. Hollister v. A. S. Aloe Co., 348 Mo. 1055, 156 S.W.2d 606; Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601, 604.
When the bus came to a stop, plaintiff undertook to leave by the front door. When the door opened, plaintiff was confronted by a crowd of ten or more children, who were in the immediate vicinity waiting to get on the bus. The children were congregated around the front entrance, all around from the left clear over to the right. They were in the street between the curb and the edge of the step. There were two steps on the bus and, as plaintiff stepped down these steps, one of the children started coming up and into the bus and plaintiff turned to the southwest, toward the front of the bus and stepped out. When asked whether she looked to see where she was stepping before she stepped down from the bus, she said: 'I tried to see * * * I could not see on account of the children * * *.' When asked if she looked to see where the bottom step of the bus was with reference to the curbing, she said:
When plaintiff stepped into the street with her right foot, her heel hit an elevated place or ridge and her foot seemed to twist or turn and went down into a depression five or six inches deep. It 'was down just reasonably within a step as you step down.' She could feel the elevation, a ridge, when her heel struck and she knew it wasn't anything smooth. It was something rough. She never at any time hit the curb. The curb was at least two feet from the bottom step. After she was seated on the bus step, she observed the hole immediately below the step and a rolled up place, The ridge was rolled up from the hole. The high point or apex of the ridge extended out six or seven inches from the curb.
Plaintiff's witness Cutrell testified that the bus stopped with the bottom step about three feet from the west curb of Kingshighway. In describing the condition of the street from the curb to the bus step, he said there were 'two big ripples * * * deep ripples there at the curb'; that these 'ripples' or depressions extended out to the bus; that the depression nearest the bus was about 5 inches deep; that the pavement was not broken, but there was a depressed or sunken place in the street; that 'both 'riffles' came together right at a peak'; that 'the top of the macadam where it came up to the 'riffle' was all loose there'; and that he 'observed * * * where the lady's foot mark was there, or heel mark * * * where she had stepped and tore it down.'
Defendant's witness, Tiffany, a police officer, who came to the scene of plaintiff's injury, testified that the step of the bus was about two feet out into the street from the west curb of Kingshighway; and that 'the street was more or less rough; it looked like it had been beat up from automobiles going over it, the black top or asphalt pushed up.'
Defendant's bus operator, O'Neal, a witness for defendant, testified that he examined the pavement on Kingshighway between the bus step and the curb. It looked just like any other place along the curb, just ordinary asphalt on the street, he would not say it was perfectly level, the busses wear the street out and there is a sort of guttering effect but the pavement was smooth. He also testified that, as he pulled up to stop when plaintiff was injured, he knew there was a rut and depression there, a worn out place in the street; he didn't know how long it had been there, but he said he stopped with the depression right under the bus step and there was a slight rise between the step and the curb, where the macadam was pushed up toward the curb. He admitted that he had previously testified (by deposition) to the effect that there was 'a kind of gutter, a ditch like' at the place where the bus stopped; that he didn't know how deep it was, but it was away from the curb. He said 'the street just rolls up against it like that, the tar gets hot and rolls up'; and that the bottom of the depression was usually eighteen or twenty inches away from the curb.
Appellant argues that 'plaintiff's attempt to describe the condition of the street is absolutely unintelligible'; that one of plaintiff's witnesses testified that someone took pictures of the bus before it was moved; that the pictures taken and identified by defendant's witness, Palfrey, accurately reflect the position of the bus and the condition of the street; that these pictures conclusively show there were no defects in the street at the point where the bus was stopped; that plaintiff admitted signing a statement within three days after her injury, saying that she stepped for the curb and missed the curb and her right ankle turned under her; that in this statement there is no mention of any defective condition of the street; that there is no substantial evidence that there was a defective condition in the street which caused plaintiff to fall; that 'there is no substantial evidence as to what caused plaintiff to fall'; and that 'the evidence in this case leaves the question as to how or what caused her fall to pure speculation, guesswork and surmise.'
On the record presented the matter of conflict or variance between plaintiff's testimony at the trial and her prior statements was for the jury upon the issue of credibility, weight and value of her testimony. Plaintiff was in no way concluded by the pictures mentioned. She at no time admitted that these pictures were taken at the particular time and place or that they correctly showed the condition of the street, or the location of the bus. Defendant's witness testified that he took the pictures. He gave the time and place when and where the particular pictures were taken and the kind of lens used. He testified that the three pictures in question fairly represented, in the various views taken, the relative position of the bus with respect to the curb and the appearance of the physical features of that area. Independent of his, or similar testimony, the pictures were inadmissible. In this case they were clearly sponsored by the testimony of defendant's witness, whose testimony they served to explain and illustrate. Their credibility, weight and value did not exceed that of the sponsoring witness and neither the witness' testimony nor the pictures were conclusive on plaintiff. Baustian v. Young, 152 Mo. 317, 322, 53 S.W. 921; Kirkpatrick v. Metropolitan St. Ry. Co., 211 Mo. 68, 82, 109 S.W. 682; Morgan v. Kroger Groc. & Baking Co., 348 Mo. 542, 154 S.W.2d 44, 51; Fitzgerald v. Schaefer, Mo.App., 216 S.W.2d 939, 942; Bretall v. Mo. Pac. R. Co., Mo.App., 239 S.W. 597, 599; Davidson v. St. L. & S. F. R. Co., 164 Mo.App. 701, 713, 148 S.W. 406; 32 C.J.S., Evidence, Sec. 709, p. 611.
The favorable evidence heretofore reviewed with reference to the condition of the street at the place where the bus stopped for the discharge of passengers was entirely sufficient to sustain a finding, as submitted, 'that the defendant did fail to exercise the highest degree of care and was negligent in failing to select a reasonably safe place for plaintiff to alight from said bus, and that plaintiff was injured as a direct and proximate result of the aforesaid negligence of the defendant * * *.' Beahan v. St. Louis Public Service Co., 361 Mo. 807, 237 S.W.2d 105; Beahan v. St. Louis Public Service Co., Mo.App., 213 S.W.2d 253; Wilson v. Kansas City Public Service Co., Mo.App., 238 S.W.2d 73, 76; Caley v. Kansas City Public Service Co., 226 Mo.App. 934, 48 S.W.2d 25, 26.
Appellant further insists that 'on plaintiff's own testimony she was guilty of contributory negligence as a matter of law.' Appellant argues that plaintiff 'stepped down without being able to see where she was stepping'; and that 'despite her inability to see, plaintiff proceeded to step off the bus at the entrance door without waiting for the children to get out of the way...
To continue reading
Request your trial
-
Vosburg v. Smith, 7253
...except insofar as it may aid plaintiff's case [Smith v. Siedhoff, Mo., 209 S.W.2d 233, 234(1); Williamson v. St. Louis Public Service Co., 363 Mo. 508, 512-513, 252 S.W.2d 295, 297(1); Sollenberger v. Kansas City Public Service Co., 356 Mo. 454, 462, 202 S.W.2d 25, 29(2)], we think it clear......
-
Anderson v. Welty, 7793
...Co., 357 Mo. 19, 28, 206 S.W.2d 501, 507(8); Stupp v. Fred J. Swaine Mfg. Co., Mo., 229 S.W.2d 681, 686; Williamson v. St. Louis Public Service Co., 363 Mo. 508, 252 S.W.2d 295, 299(7); Romandel v. Kansas City Public Service Co., Mo., 254 S.W.2d 585, 591(11); Tarantola v. Johnny Hemphill, I......
-
Faught v. Washam
...335, 343(14), 30 A.L.R.2d 1176; Crockett v. Kansas City Rys. Co., Mo., 243 S.W. 902, 908. Consult also Williamson v. St. Louis Public Service Co., 363 Mo. 508, 252 S.W.2d 295, 303(16).22 Stewart v. Boring, supra, 312 S.W.2d loc. cit. 135; Crockett v. Kansas City Rys. Co., supra, 243 S.W. lo......
-
Caffey v. St. Louis-San Francisco Ry. Co.
... ... profile would have been for the jury in any event (see Williamson v. St. Louis Public Service ... Co., 363 Mo. 508, 252 S.W.2d 295, 298, ... ...