Millar v. St. Louis Transit Company

• Decision Date: 23 December 1908
• Citation: 114 S.W. 945,215 Mo. 607
• Parties: ADA J. B. MILLAR v. ST. LOUIS TRANSIT COMPANY and UNITED RAILWAYS COMPANY; ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

114 S.W. 945

215 Mo. 607

ADA J. B. MILLAR v. ST. LOUIS TRANSIT COMPANY and UNITED RAILWAYS COMPANY; ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, First Division

December 23, 1908

Appeal from St. Louis City Circuit Court. -- Hon. O'Neill Ryan Judge.

Affirmed.

Boyle & Priest, F. S. Whitelaw and T. E. Francis for appellant.

(1) Appellant's demurrer to the evidence should have been sustained at the close of the whole case. Bartley v Railroad, 148 Mo. 124; Williams v. Railroad, 78 S.W. 45. The negligence charged consists of the doing of two distinct and separate things, namely, the sudden start without warning, and the stop within a few feet with a sudden jerk and shock, whereby deceased was caused to fall and be thrown. Before respondent can recover on this allegation which is the only assignment of negligence, it devolved upon her to prove the two acts of negligence, viz.: a negligent start, which under the testimony we concede is established, and a negligent stop, which under the testimony we contend is not established. (2) The court erred in giving the first instruction on behalf of plaintiff, because a part of the charge of negligence therein submitted (that the car was negligently stopped) is not sustained by the evidence. Bartley v. Railroad, 148 Mo. 124; Price v. Railroad, 125 Mo.App. 67. By this instruction, the jury were charged that if they believed from the evidence that the motorman caused and permitted the car, suddenly and without warning, to start and go forward while the plaintiff's deceased husband was in the act of alighting therefrom, and that after the same had moved forward a few feet, he caused and permitted the same to stop with a sudden shock and jerk, by reason whereof decedent was caused to fall and receive injuries resulting in his death, they should find for plaintiff. To return a verdict for plaintiff under this instruction, it was absolutely essential that the jury find plaintiff's deceased husband's injuries to have been the direct result of two conjunctive acts of negligence of defendant, namely, negligence in causing the car to start while deceased was alighting therefrom, and negligence in stopping the car with a sudden jerk or shock; that these two acts of negligence together caused the injuries out of which this suit arose.

Earl M. Pirkey and Lon O. Hocker for respondent.

(1) The evidence to support the allegation of negligence shows that the entire occurrence happened within a few seconds of time. The whole action of the car amounted simply to a lurch of the car. The witness testifies in direct language that the car started suddenly, went forward two or three feet, and stopped with a jerk. If a car starts suddenly and progresses only two or three feet and stops with a jerk the stop must have been a sudden jerk. A body of the size and momentum of a car could not do otherwise, and the evidence shows that the whole occurrence was continuous and momentary. The evidence shows also that the starting of the car threw the deceased southward and that when the car stopped he was thrown northward against the body of the car. This shows that the stop was with a sudden shock and jerk. Therefore, the charge of negligence in the petition and in the general instructions is fully and clearly established. (2) Even if the evidence did not show a sudden stop and jerk on the part of the car defendant would still be liable because the evidence does show that the start was negligent. The jury found that the entire action of the car caused the deceased to fall, the motion of the car all happened after the car had come to a dead stop and while deceased was on the step of the car attempting to alight. Now if, as the jury found, the starting of the car was a direct cause of his fall, defendant is liable. It is not necessary for plaintiff to prove all he alleges, where what he does prove is alleged and is sufficient to sustain his case. Hartpence v. Rogers, 143 Mo. 632; Gannon v. Gas Light Co., 145 Mo. 502; Grace v. Railroad, 156 Mo. 306; Becker v. R. E. & Bldg. Co., 174 Mo. 250; Hurley v. Railroad, 120 Mo.App. 266.

OPINION

GRAVES, J.

Plaintiff, Ada J. B. Millar, by her action in the circuit court of the city of St. Louis, sued both the St. Louis Transit Company and the United Railways Company, for the negligent killing of her husband, William J. L. Millar. By the petition, both defendants are charged as being "corporations duly organized and existing under and by virtue of the law of the State of Missouri as common carriers of passengers for hire, and at said times and as such, owned, used and operated the railway line and cars hereinafter mentioned for the purpose of carrying passengers for hire from point to point in the city of St. Louis, State of Missouri, as a street railway." The petition then, after making the allegation that Mr. Millar was a passenger upon a car, charges negligence thus:

"That at said northeast corner of Sixth street and Franklin avenue said car was stopped by defendants by their servants then in charge of and managing said car, for the purpose of allowing said William J. L. Millar to alight therefrom, whereupon plaintiff's said husband immediately started to leave said car by way of the rear platform, which is and was the customary and usual way for passengers to leave the cars of defendants, but while he was in the act of passing to the steps of said rear platform in his attempt to alight from said car and before he had a reasonable time or opportunity to alight from said car, defendants, unmindful of their agreement with him and of their duty in the premises, did, by their servants in charge of and managing said car, negligently cause and permit said car to suddenly and without warning start and go forward with a sudden motion and jerk for a few feet, and then stop with a sudden shock and jerk, whereby said William J. L. Millar was caused to fall and be thrown and thereby be greatly injured in his spine, body, limbs, internal organs, and nervous system. That by reason of his said injuries so sustained the said William J. L. Millar died on the eighteenth day of December, 1904. That by reason of the foregoing facts and the statute in such cases made and provided, plaintiff is entitled to sue for and recover the sum of five thousand dollars, for which amount she prays judgment."

To this petition both defendants filed demurrers which were overruled and they answered over, which answers were each a general denial. Upon trial ten of the twelve jurors found for plaintiff in the sum of $ 5,000 as against both defendants, upon which verdict judgment was entered. Upon motion for new trial the court vacated and set aside the judgment in so far as the United Railways Company was concerned, but left it stand as to the Transit Company. From this judgment cross-appeals were taken, and that by the Transit Company is numbered in this court 13118, and the appeal taken by Mrs. Millar against the United Railways Company is numbered 13392.

After judgment and pending appeal the plaintiff, Mrs. Millar, died, and but for this fact we would dispose of both cases in one opinion. In the Transit Company appeal her death has been suggested and her administrator duly substituted. In the other case objection is made to this procedure. We will therefore take up the appeal and facts in the Transit Company case first, and then later, by separate opinion, discuss the additional questions in the United Railways Company case wherein Mrs. Millar was appellant. From the abstract it appears at the beginning of the trial, the following admission was made:

"Counsel for defendants admits that in 1899, and since that time, the United Railways Company, the defendant, has been the owner of what is known as the Lee Avenue line in this city, that is, including the street cars and equipment."

The evidence tends to show that the deceased, an aged physician, with his son Reginald Millar, a young physician, aged twenty-seven years, boarded a car on the Lee Avenue line at the corner of Sixth and Locust streets, in the city of St. Louis, April 23, 1904. They desired to go upon this line to Sixth and Franklin avenue, where they expected to transfer to another line to reach their home, 4043A Cozens avenue. The father seated himself inside the car and the son remained on the rear platform. The fares were paid and the proper transfers procured. The son, who is the only witness testifying in the case upon the manner of the accident, says:

"Q. And the conductor gave you two transfers for that point? A. Yes, sir.

"Q. That entitled you to passage at Sixth and Franklin west on Franklin avenue? A. Yes, sir.

"Q. On what is familiarly known as the Easton avenue line? A. Yes, sir.

"Q. When the car approached Franklin avenue, just state what occurred, was any signal given? A. A signal was given, or I told the conductor that I wanted to alight, and a signal was given for the car to stop.

"Q. That is, you mean by the conductor to the motorman? A. By the conductor to the motorman. The car came to a stop, father got up --

"Q. Where did it come to a stop? A. About three feet from the proper crossing.

"Q. Three feet which way? A. Three feet south.

"Q. The rear platform was three feet south of the crossing? A. Yes, sir.

"Q. Go ahead. A. Father came out on the platform and started to step off, the car started forward two or three feet and stopped with a jerk, he fell to the floor of the platform, fell from the car, and I jumped off and picked him up carried him or assisted him to the curb on the east side of Sixth street.

"Q. When the car first came to a stop where was your father? A. Inside the car.

"Q. In what attitude, sitting or standing? A. He had stood up in the car and when the car came to a stop he walked...