120 Mo. App. 270 | Mo. Ct. App. | 1906
Suit for damages for personal injury. Por convenience we adopt the statement of plaintiff setting out in substance her cause of action, viz.: “The petition . . . recites that on the 16th day of December, 1903, the plaintiff was a passenger on one of defendant’s southbound cars on Grand avenue in Kansas City, and that while in the act of alighting therefrom at Twelfth street and Grand avenue, and while the car was stopped for the purpose of permitting her to
The plaintiff weighed about one hundred pounds. and was compelled to use a crutch in walking, the result of an injury she had suffered in her girlhood. She stated substantially that as she came to the step to alight she was facing west and that she took hold of the handle on the right side of the car, put her left foot onto the edge or broken part of a piece of metal which projected up an inch or an inch and one-half and which pushed into the heel of her shoe; and that as she started to step to the ground the heel of her shoe was held by the projection and she was thrown upon the street and that the heel of her shoe remained fastened to the metal after she had fallen. The metal on the step was shown to be what was known as the Mason Safety Tread, fastened to the top of the wooden step of the car. She was corroborated by other witnesses to the effect that while she was lying on the ground her foot was still held fast by said projection, and that there was an indenture in the
On cross-examination the plaintiff at first stated that the edges of the metal plate were projecting upward, and that they were not smooth. She was asked if the edges on the plate were smooth or otherwise. She answered : “No, sir; it was not smooth. Kind of broken.” She was then asked: “Was it an even surface on the edge of the plate or not?” She answered: “Yes, I believe it was.” Question: “Now, what part.of this plate was the piece that caught your shoe on?” Answer: “On the back part.” Question: “On the back part?” Answer: “Yes, sir.” The answers appear somewhat contradictory, but it is evident that plaintiff meant to say that the outer edge of the plate was smooth but that the back edge was broken and rough.
A step with a safety tread of the kind was brought into court which appeared to be in good condition, but plaintiff and another witness testified that it was not the one in controversy. But certain of defendant’s witnesses stated that it was the same. It appeared, however, that if it was the same, it had been painted since the occurrence.
One of defendant’s witnesses described the plate in controversy as follows: “They are made of rolled plate steel. They are rolled with a little V-shaped corrugation in them just as shown here (alluding to the one present) and then there is a dovetail formed in between the V-shaped places by a "thin edge — a little plane, still extending up, with a heavy dovetailed plate longitudinally in between — as you can see there, just about three-eighths of an inch wide. Then in this little pocket, or dovetailed corrugation there is strips of lead fastened in there, so that the lead comes even with the top edge of that little strip of steel flange that projects up over the main plate. • The lead is put in, as a non-slipping material, and the steel is. just simply to reinforce the lead, and
We gather from the description that the metal plate in question was merely a frame adapted to the purpose of holding the lead in place. That the parts inclosing the lead are made of thin steel. If the lead should be worn or displaced this thin frame would extend above the surface. We take it for granted that as a general rule all mechanical contrivances- are liable, to change and deterioration from use. And it is plain that the one in dispute is no exception to the rule. We think it possible that the lead in the metal frame had become worn or displaced so as to have left the thin edge of the plate extending above the surface in its worn state, and that thus exposed it would become broken and in that condition have caught and held the heel of the plaintiff’s shoe as detailed in her testimony.
But it is insisted that if the occurrence, as plaintiff gave it, was not impossible, it was improbable and for that reason the finding should be set aside, as it was overborne by contrary evidence. In State v. Fannon, 158 Mo. 149, the court held that the statement of witnesses that a wagonload of chips was only worth five or six cents “is utterly incredible.” In Payne v. Railroad, 136 Mo. 562, it was held: “The direct testimony of a party which is contradictory of, and in opposition to, conceded and undisputed physical facts, should be disregarded by both courts and juries.” Hook v. Railroad, 162 Mo. 569, and other cases cited, assert the same principle. In Spiro v. Transit Co., 102 Mo. App. 263,
In order to have a full understanding of the occurrence it will be necessary to state the evidence corroborating that of the plaintiff more in detail. Mrs. Thomas Rattan, a sister-in-law of plaintiff, who was present stated that, she did not notice plaintiff when she got off the car, but, “looked down (she being still on the car) and saw that she had fallen and twisted her left foot around — she had caught her left foot on the step.” “The left foot was up on the step; it was caught.” Question: “What was it caught on?” A. “On a piece of iron that was on the step; the step was worn out; along the center of it there was a worn condition, and there was a piece extending up, and that was what she caught her heel on. She took her hand and pulled her heel off the piece of iron .or whatever it was.” Question: “What condition was the edge of the plate when your sister was caught?” A. “It was all worn and rough. ... I noticed that there was a piece sticking up.”
Mrs. Lulu DeCorum testified that she got off the car before plaintiff and that her dress got caught and torn on a piece of iron that was standing up on the step about middle way; that while she was fixing the binding of her dress that had been torn she looked around to see where the girls were and saw Miss Rattan was lying on the ground with her foot caught on the step, “and my sister [Rattan] and a couple of other fellows was helping her up.” Question: “Where was her feet or either of them?” A. “Her left foot on the ground, her right foot upon the piece of iron, caught.” Ques
It was shown that her ankle was sprained and that her hip was injured. The distance from the step of the car to the ground is not very great, probably about one foot. Although in the usual course of affairs the occurrence is not what might have been expected, yet it was not incredible. We can see that a jagged thin piece of iron standing above the surface of the step might penetrate the heel of a woman’s shoe when she put her whole weight upon the projection and throw her down, and that it might retain its hold after she fell, as she would not be over a foot below the step after she reached the ground. The evidence of the woman witness who preceded plaintiff that the projection caught and tore her dress when she was in the act of alighting from the car, was strongly corroborative of plaintiff’s description of the condition of the steps. And under the circumstances we do not believe that we would be justified in branding the three witnesses for plaintiff, who practically agree as to what occurred, as liars. It was for the jury to say which set of witnesses told the truth as between those for plaintiff and those for the defendant. And resting alone on plaintiff’s evidence, in so far as the point made, upon which the case must stand or fall, we said in a case similar upon principle that “So frequently do unlooked for results attend the meeting of interacting forces that courts, in such cases, should not indulge in arbitrary deductions from physical law and fact except when they appear to be so clear and irrefutable that no room is left for their entertainment, by reasonable minds, or any other.” Lang v. Railroad, 115 Mo. App. 489.
The point made that, “there is no evidence that the defendant knew or could have known of any defect in the step of the car, or had time to remedy the same,” is
Instruction number one, given at the instance of plaintiff, is criticised because it fails to define negligence. The instruction seems to be faulty in that respect, and those given at the request of defendant are also faulty in that particular. The omission was mutual. The same question arose in Sweeney v. Cable Co., 150 Mo. 385, where it was held, in speaking of negligence, that “This is a word the meaning of which is well understood and no definition of it was necessary. As used in the instruction it could not have been misunderstood by the jury, or in any Avay have misled them.” However, the jury was properly instructed as to what constituted reasonable care. It is said: “There are no degrees of negligence. There are degrees of care, and a failure to exercise that proper degree of care the law requires is .negligence.” [Magrane v. Railway, 183 Mo. 119.] The quotation from said instruction in part as follows: ‘and that defendant was careless and negligent in operating said car with said projecting metal on said step, and that the same was liable to catch the shoe of a passenger exercising ordinary care in leaving the car, and that defendant kneAV, or in the exercise of ordinary care and diligence might have ImoAvn, that said piece of metal did project from the step of said car, long enough to have remedied the same before the happening of said injuries, then the jury will find for plaintiff.” As the instruction fully defined the degree of care resting on the defendant,
The defendant’s fifth instruction contains the following : “Before she can recover in this case, you must not only find that the defendant . . . was negligent in the particular and specific respects submitted in these instructions, but you must further find that such negligence was the direct cause of her injury.” It seems, judging by said instruction, that defendant was satisfied to submit the issue of negligence to the jury on the presumption that it was sufficiently informed and capable of determining its duty in that respect.
The jury returned a verdict for plaintiff in the sum of $5,000. While the motion for a new trial was pending the plaintiff entered a remittitur of record in the sum of $1,500, and judgment was rendered by the court for $3,500. The verdict is attached as excessive and as evidence of bias on the part of the jury. The judge before whom the case was tried thought otherwise or else he would have set the verdict aside. The evidence was conflicting as usual in such cases, but it was the province of the jury to pass upon the credibility of witnesses. There was ample evidence, if plaintiff and her witnesses are to be believed, to support the finding. The judge who tried the case, who heard all the testimony and saw all the witnesses, was much better prepared to pass upon the question than we are, and in the absence of dereliction of duty on his part in that respect we decline to interfere in the matter.
The cause is affirmed.