Schloemer v. St. Louis Transit Co.

• Decision Date: 02 April 1907
• Citation: 204 Mo. 99,102 S.W. 565
• Parties: SCHLOEMER v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

102 S.W. 565

204 Mo. 99

SCHLOEMER v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 2.

April 2, 1907.

1. CARRIERS — INJURY TO PASSENGER — EVIDENCE.

In an action for injuries sustained by a passenger on a street car, evidence examined, and held not subject to demurrer.

2. SAME—CARRIAGE OF PASSENGERS—DUTY TO PASSENGER.

Street car companies are carriers of passengers, and are held to the highest care and skill which prudent men would use and exercise in a like business and under like circumstances.

3. WITNESSES — IMPEACHMENT — INCONSISTENT STATEMENTS.

Where, in an action for injuries to a passenger on a street car caused by the alleged defective condition of the tracks, whereby passing cars were thrown too closely together, the motorman testified that at the time of the injury his car had passed the other without contact, and that there was no jar or jolt, it was competent, in order to impeach his testimony, to ask him, on cross-examination, if he had not, on the day following the injury, said to a certain person at a certain place that it was a dirty shame that they did not fix that track: that that was the third time that his car had caught there within two weeks.

4. SAME.

Where, in an action against a street car company for injuries, one of the officers of the company testified that the track at the place of injury was in the same condition at the time of trial as it was at the time of the injury, it was competent, in order to show that his statement was untrue, to prove by other witnesses that the tracks had been repaired soon after the accident.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Ann Schloemer against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle & Priest and Glendy B. Arnold, for appellant. A. R. Taylor, for respondent.

GANTT, J.

This is an action by the widow of Joseph Schloemer to recover $5,000 as damages caused by the alleged negligence of the defendant, a carrier of passengers, in providing an insufficient railroad and defective appliances, whereby said Joseph Schloemer, a passenger on one of defendant's street cars, was injured, and died on the 20th of May, 1903. The petition alleges, in substance, that the plaintiff was the widow of Joseph Schloemer at the time of his death; that on the 19th of May, 1903, the defendant was a corporation and operating a railway and cars for the purpose of carrying passengers for hire in the city of St. Louis as a common carrier of passengers; that on the said date the plaintiff's husband was a passenger on the defendant's south-bound car on Eighth street, at or near Julia street, in the city of St. Louis, when his left arm was struck, crushed, and cut off by one of the defendant's north-bound cars on Eighth street in passing the said car on which plaintiff's husband was such passenger, catching and crushing his hand and arm against said car on which he was such passenger, and thereby plaintiff's husband was so injured that he died from said injuries on the 20th of May, 1903. Plaintiff avers that defendant's railway tracks were defectively constructed, in that they were too close to each other to allow sufficient space for defendant's cars to pass by each other at said point with safety to its passengers; and said tracks were further defectively constructed and maintained, in that the inside rails were lower than the outside, causing the cars in passing to nearly touch each other, and exposing the passengers on street cars, who should allow or suffer any part of their person to protrude beyond the windows of said cars, to be struck and injured by said passing cars; and said tracks were further defective, in that they were worn, out of repair, and thereby caused said cars to approach dangerously close to each other in passing, and thereby exposed passengers to peril. Plaintiff avers that said car on which her husband was such passenger was defectively constructed, in that the guard at the window was too high, and permitted the arms of passengers, when resting on the window sills of the car, to protrude beyond said car and be endangered by passing cars in striking and injuring them; that whilst her husband was such passenger on said car, riding with his elbow on the window sill of said car, his arm was crushed by a lurch or jolt of said car, and by reason of said defective condition of said car and the guard thereof, to be thrown beyond the extension of said car, and by reason of said defective condition of defendant's tracks and said defective conditions of said car and the guard thereof, was struck by another of defendant's cars, and he was injured as aforesaid; that said cars of defendant were public conveyances, and plaintiff's husband was a passenger on one of them as aforesaid; that by the death of her husband, as aforesaid, an action has accrued to plaintiff to sue for and recover $5,000 according to the statute in such case made and provided. The answer is a general denial, and a plea of contributory negligence in that the injury was caused by the deceased putting his arm out of the car window so that it was struck by a passing car. The reply was a general denial.

The evidence tended to show that plaintiff was the lawful wife of Joseph Schloemer at the time of his death; that on the evening of May 19, 1903, Joseph Schloemer was sitting in the fourth seat from the rear of the car on the east side as he rode to the place where his injury occurred. He sat in his seat and rested his elbow on the window sill of the car. Jacob Luetzl, a passenger on this car in the third seat from the rear, but on the west side of the car, testified as to the manner in which deceased sat in the seat and rested his arm: "He was sitting by the window like that, chewing his tobacco, and it looked— That is the way I seen him all the way down. Q. Where was his arm resting? A. On the sill, like this. He had his hand resting on his cheek, and his elbow on the sill." Joseph Schleyer testified: He got on this car at Sixth and Market streets, and rode in the same seat with Luetzl. Asked if he noticed the deceased, he said: "Well, certainly, I got on at Sixth and Market, and the old man was sitting in the car, and had his hand resting like this on the window sill [indicating with his elbow on the window sill]." The conductor of this car, a witness for the defendant on this point, testified as follows: "Where were you at the time? A. I was on the back platform. Q. You could see into the car? A. Yes, sir. Q. You could see all the passengers in the car that were as far forward as the third seat, couldn't you? A. Yes, sir; I did not have many passengers on the car. Q. The passenger on the third or fourth seat was in plain view, was he not? A. Yes, sir; they were in plain view. Q. Now, did you see the man lying there, lying against the side of the car with one hand reaching up over the top there and sticking [out]? A. No, sir; if I did I would have stopped him. Q. You would not have allowed it? A. No, sir."

The testimony further showed that the window next to which the deceased sat was open; that is, the sash was lowered into the window pocket, below the window sill. For the protection of its passengers, defendant had placed across the lower part of this window, and on the outside of the car, four iron bars 2½ inches a part. The lowest bar was 3½ inches above the sill of the window; but the testimony for the defendant tended to show that, when the sash was let down into this pocket, the wooden frame on the top of the sash would stand up above the level of the window sill, and that the distance between the top of this sash and the lower rod would not be over from ½ to ¾ of an inch. On the other hand, there was evidence tending to show that, when the sash was down in the pocket, the space between the top of the sash or the window sill and the lower bar was 3½ inches. On the part of the defendant, the testimony tended to show that the deceased was sitting in the seat with his arm resting on the rail (referring to the rods or guards to the window); that his arm was on the top one, and his hand outside of the car. The witness Deusterhause could not say how far his hand was extended out of the window. On cross-examination he stated that the deceased was sitting two or three seats in front of him, and was resting against the east side of the car. He was asked: "He was lying against the east side of the car. Here is the outside of the car, and, in order to get his hand out the way you put it, he had to twist it around this way, didn't he? A. I did not say that he twisted it. Q. Did he have it back this way, or did he have it— A. He had it straight. Q. He had it straight out this way, and was lying against the back of the car? A. Yes, sir. Q. And had his hand out this way? A. Yes, sir. Q. You saw that? A. I saw it that way. Q. I understand that he did not lay with his front towards the window, did he? A. No, sir. Q. He lay with his back and side towards the window, this way? A. No, on the side, that is with his left arm and shoulder next to the iron rods, and he had his head on his arm." The witness indicated a posture where the arm rested slightly from the shoulder stretched out. Madden, the motorman on the northbound car, testified that he noticed the man's arm as the two cars were about to pass each other. He said that the deceased was sitting in the car with his elbow doubled and out over the top of the top guard. Perkins, the conductor on the north-bound car, testified that the deceased was sitting in his seat with his elbow over the top bar and extending out from four to six inches beyond the car. Two photographs were offered and used in evidence and will accompany this opinion. Weidner, who took the photographs, testified that the man whose photograph was taken in exhibit No. 1 was five feet ten or five feet eleven tall; whereas, the evidence tends to show that the deceased was...