Fairley v. St. Louis Public Service Co.

362 S.W.2d 549, 1962 Mo. LEXIS 549
CourtSupreme Court of Missouri
DecidedDecember 11, 1962
DocketNo. 49369
StatusPublished
Cited by1 cases

This text of 362 S.W.2d 549 (Fairley v. St. Louis Public Service Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fairley v. St. Louis Public Service Co., 362 S.W.2d 549, 1962 Mo. LEXIS 549 (Mo. 1962).

Opinion

WESTHUES, Chief Justice.

Plaintiff Osie Fairley filed this action in the Circuit Court of the City of St. Louis against the St. Louis Public Service Company to recover damages for injuries alleged to have been sustained while she was a passenger on a bus operated by the defendant company. A trial resulted in a verdict and judgment in plaintiff’s favor for $2,000. On appeal, the St. Louis Court of Appeals remanded the case for retrial on the question of damages only. Fairley v. St. Louis Public Service Co., 352 S.W.2d 393. On application of the defendant, the cause was transferred to this court.

In the circuit court, the cause was submitted to a jury on the theory of res ipsa loquitur. On appeal, the Court of Appeals held that such a submission was proper. On the application to transfer, this court was of the opinion that the case should not have been submitted on res ipsa loquitur but should have been submitted on specific negligence. We are still of that opinion.

[550]*550On the morning of July 6, 1958, plaintiff was a passenger on a bus operated by the defendant. As the bus approached the intersection of Waterman Avenue and Union Boulevard, plaintiff pulled the cord which operated the buzzer signaling her intention of getting off the bus. She was sitting next to a window and a man occupied the seat beside plaintiff on the aisle side. This man stepped into the aisle to permit the plaintiff to pass. As plaintiff slid over the seat to the aisle, she felt a sting on her left leg below the knee. After she reached the aisle, she noticed her leg was bleeding. The man who had been sitting next to her gave her a handkerchief which another passenger, a Mrs. Thompson, tied around plaintiff’s leg. Later, she was taken to a hospital. (For a more complete statement of plaintiff’s injuries, see the opinion of the Court of Appeals, supra.) Plaintiff did not examine the seat. However, Mrs. Ruby Thompson, a plaintiff’s witness who had aided plaintiff with her injuries, testified that she did examine the seat and found a metal obj ect protruding from the seat. Mrs. Thompson, in describing the metal object, stated:

“A Well, as near as I can describe it, it was a flat object, and it seemed to be cut and left little jagged ends on this piece of iron, whatever you call it.
⅜ * ⅜ * * *
“Q Now, when you noticed this thing protruding, you say you had to look down?
“A Yes, you have to look down.
“Q It was visible to the naked eye; is that correct?
“A Yes.
⅜ ⅝ ⅜ ⅝ ⅜ ⅝
“Q Now, you say that you saw this piece here for about ten minutes, is that correct?
“A Yes. I was on the bus and sat back in this seat and felt this thing and sat there and felt it.
“Q When you noticed this piece of metal, could you describe the condition of that piece of metal?
“A Well, it’s a flat piece of metal and it had been cut, it had a jagged end.
“Q Did you notice anything else about the piece of metal, anything on it that you could describe?
“A Nothing but the jagged end.
“Q Was it painted?
“A No, unpainted.”

Dr. Vaughn Payne testified he treated plaintiff after her injury. Note his evidence with reference to plaintiff’s injury:

“Q Now Doctor, did you notice any cut or anything on the leg?
“A She had a laceration or puncture wounds in the same area where that blood was coming from.
“Q Could you describe this area, Doctor, or this puncture or cut that you just described?
“A Well, it was cut, a wound. You could tell it was cut because it was kind of jagged. It had — some blood had already clotted in the wound. Of course, I didn’t do a whole lot of washing out because I was trying to control the hemorrhage at that time myself.
“Q Now Doctor, what did you do on that first trip, what did you do for Mrs. Fairley?
“A Well, we cleaned it up on the outside and then pulled the wound together with adhesive tape because I didn’t want to put a suture in it because it was probably infected and I didn’t want to sew up any infection in her leg, so I pulled it together with adhesive plaster.”

On cross-examination, defendant’s counsel asked Dr. Payne if due to plaintiff’s condition of having varicose veins the bleeding might have been the result of a spontaneous [551]*551rupture. Note the doctor’s evidence on this question:

“Q What would be the force that pushes it against this object that would cause the vein to rupture?
“A Well, it is more due to the type of object which it goes against, because a sharp object would almost immediately rupture with almost no force at all.
“Q That’s right. So then Doctor it would be your testimony that there is a relation to the force that you place against the particular object might have something to do with the rupture of a vein?
“A No, my testimony was that we had a cut there, a laceration. There is no question about it being cut. The vein was not burst in my opinion, the vein was cut.”

Dr. E. C. Funsch testified as a witness for the defendant. The doctor had examined plaintiff a few days before the trial. Note a portion of his evidence:

“Q Now Doctor, this scar that you were talking about, was there anything unusual about that?
“A No, it was just a superficial scar.
“Q Had this scar shown the normal healing process?
“A It was healed.
“Q Doctor, was there anything, as you said a thickening, did you find any swelling or thickening about her legs?
“A No. Some of her veins of her legs were a little large, but the skin was normal.”

Defendant offered in evidence a seat (from a bus) similar to but not the one on which plaintiff claimed to have been injured. This seat was Exhibit A. On cross-examination of Dr. Funsch, the following occurred:

“Q Now Doctor, I am going to call your attention to Defendant’s Exhibit ‘A’ and ask you to look at these two metal clamps on the sides of it Doctor, and ask you to move the seat this way, please Doctor (indicating).
“(Witness moves seat)
“Q Would a person brushing against one of those, would that cause a laceration?
“A Sure.
“MR. SCHMIDT: I would like to object to that as calling for speculation on the part of the Doctor.
“THE COURT: He is qualified as an expert. The objection is overruled.
“A I don’t think it takes an expert to tell that. You could skin your shin on that.”

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Related

Fairley v. St. Louis Public Service Co.
389 S.W.2d 378 (Missouri Court of Appeals, 1965)

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Bluebook (online)
362 S.W.2d 549, 1962 Mo. LEXIS 549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fairley-v-st-louis-public-service-co-mo-1962.