APPEAL from Buchanan Circuit Court, HON. JOSEPH P. GRUBB, J.
Reversed.
Statement of case by the court.
This is an action to recover damages for personal injuries. The petition, after the formal averments, states: “That on the 29th day of December, 1881, between Fifteenth and Sixteenth streets, in the city of St. Joseph, on the line of the defendant's said railway, he hailed a car of the defendant, then in charge of its agent and servant, for the purpose of taking passage on said car. That the servant of said defendant the driver of said car, in charge of the same, stopped said car for the purpose of letting this plaintiff get on said car. That plaintiff, with all possible speed and with due care, stepped upon the step of said car at the front end thereof for the purpose of getting on to and into said car. That before plaintiff had time or opportunity to get into said car the servant of the defendant, the driver of said car in charge thereof, negligently, recklessly and carelessly, and without any warning to this plaintiff, started the mules or horses attached to said car, rapidly forward, and carelessly, recklessly and negligently threw the lines by which he drove, managed and controlled said mules or horses, down across the front brake of said car and stepped back into said car, carelessly and negligently leaving said horses or mules so attached to said car and so rapidly moving forward without anyone to manage or control them, and to go just as they pleased. Plaintiff further says that the platform of said car was narrow and crowded with other persons who had got on said car and had not had time to get inside thereof and on account of the condition of said platform and the negligent conduct of said driver in charge of said car, before plaintiff could get off of said step and into said car, the horses or mules being so negligently left without a driver and unguarded, run said car into and collided with a wagon on said street, which was then and there loaded with wood, by which plaintiff, without any fault on his part, but solely through and in consequence of the negligence and carelessness of the defendant, its agent and servant in charge of said car, was caught between the front end of said car and the wood and wagon, so then and there as aforesaid, and was then and there greatly bruised, crushed and injured in and about the back, hips, stomach and bowels, from which said injuries plaintiff suffered and still suffers great bodily pain and mental anguish. Plaintiff further says that his said injuries so received as aforesaid are permanent.”
It asks for five thousand dollars as damages.
The answer tendered the general issue, and a plea of contributory negligence on the part of the plaintiff.
The material portions of plaintiff's evidence are as follows: “The car came along and I stepped on the step of the platform. There was a gentleman standing with his feet in that position (indicating that his legs were stretched across the platform). The driver at the same time started up and threw his lines over the brake. I happened to look in at the window, saw my wife, took off my hat and bowed to her, as any gentleman would. At that time something struck me here (indicating his left side). That is all I knew until about 12 o'clock the next day. The driver went inside the car to change my wife's money and left nobody in charge of the team. His back was towards me and his team. I did not go inside the car because the car was open at either end and there were steps at the front and back. The car stopped beside me at that time at the front end, and I got on, guarding myself by catching hold of the handles and guard. I could not get in because the gentleman had his feet so they blocked up the door, and the driver was in the door. It seemed to me as if it were a wagon that struck me. I did not see the wagon at the time. It struck me suddenly. The injuries have affected me so I cannot sleep on the left side. I have not had a good night's rest for a year, and I cannot pass my water easily. I was confined to my bed a little over three weeks. Was not able to go out. The injuries affect me just the same now. At the time I was struck I was just looking in the car at my wife and bowed to her. I had just got on the car.”
Cross-examination:“The line of this street car, where I was hurt on Frederick avenue, runs east and west. When I first saw the car I was on the south side of the track. When I first saw the car it had not got to me. When I saw it, I signaled it. It slacked up about still and I got on. It stopped immediately beside me. I won't swear the car stopped. The driver saw my signal when I put up my hand. I saw a gentleman standing on the platform with his feet in that position (showing to jury, indicating that his legs were stretched across the platform), his back against the car, and his feet against the dashboard. The driver was on the platform. My wife was inside the car, but I did not know it until I saw her in the car. I don't remember seeing anybody on the rear platform. It was vacant. I did not see the man standing on the platform before the car got where I was. I don't know whether I could have seen him. I saw the driver, but did not see the other man at all, until after I got on. To the best of my recollection the car came to a standstill. At the time I got on I did not see the wood wagon coming. I cannot estimate how long it was after I got on until I was struck, but the car went about twenty-five feet from where I got on. After I got on, the team was started in a trot. As soon as I got on the step I took hold with both hands and turned my head and noticed my wife inside. I think I turned my head immediately. At the time I got on, the driver hit the mules. He threw his lines over the crank of the brake. Immediately after getting on this lower step I staid there for a moment, for I could not get on the platform. If I am not mistaken, I asked the gentleman if he would let me on. He did not say anything. I think I asked him before I saw my wife. At the same time the driver stepped in at the door I saw my wife. It is not a fact that I spoke to my wife from the outside of the car. I did not swing around on the outside of the car to speak to my wife. It was about a second after I spoke to her that I was struck. I swear that the driver was inside the door. I did not see the wood wagon at all. My side was towards it. I did not have time to step upon the platform at all. I do not remember seeing anybody inside except my wife. I think there was an old lady. I saw my wife and the old lady. The car had no rear platform, and I did not see anybody on the rear step. It was optional with me to get on at either end. The front step of that car lies about thirteen inches within the outside line of the car. I was standing on the lower step that is attached to the platform. I do not remember whether there was any actual collision between the car and the wood wagon. I was rendered unconscious. I don't remember getting up and going to the sidewalk. The car was going west, towards town. It was a quarter after 3 o'clock. There was no one else injured but me, neither on the platform nor inside the car. I went down to the stable some five weeks afterwards. I met the street-car driver. I remember a conversation I had with the driver. I wrote it down after I got up home. I did not state to the driver in that conversation that I did not attach any blame to him. I got upon this car west and diagonal from Seaman's store. I was in the habit of riding upon this line ever since it had run there. I should judge I was about in front of the car about the time it stopped. I was off of the sidewalk when I signaled the driver. I think about three or four feet from the curbstone. I did not look west at all.”
He introduced other witnesses, who testified merely to his injuries, and one of them to seeing him start to get on the car. The witness thought the car checked up for plaintiff to get on. The car driver, Al Sagers, testified as follows:
“I am acquainted with plaintiff. He got on my car between Sixteenth and Seventeenth streets, on Frederick avenue. I was going towards Market Square. He stepped upon the step of the car, took hold of the dashboard with one hand and the brace with the other. The first time I saw him was just when the wood wagon was catching him from the car. He was on the step and was not on the platform at all. I stopped the car before he dropped from the car. The car stopped and the wagon kept on going. The wood wagon did not stop within two or three hundred feet of the car after it passed. I saw no one signal me to stop. I was making change for plaintiff's wife when he was caught. I was standing right at the door with one foot on the door-sill. The platform is in the neighborhood of two or three feet wide between the dashboard and the front end of the car. The width from step to step is between five and six feet. This car was numbered six. I do not remember how long I had driven this car. I think I had this car a week or over. The car was drawn by mules. On the inside I had three passengers, Mr. Ashbrook's wife, Mr. Turner, and a lady. The car will conveniently hold twenty passengers without exposing their bodies on either side of the car. Four or five persons can ride on the platform. Mr. Robinson was on the platform with me at the time on the left hand side of me. It was on that side that this plaintiff got on. I suppose that between where I stood, as driver, and the car step, is between three and four feet. There is a window in the front end of the car. There is a window on the left of the door, and the door is in the center, and on either side there is a window. The money box was on the opposite side from where Ashbrook got on, so that you could look through that window into the...
