Seymour v. The Citizens' Railway Company
| Decision Date | 27 February 1893 |
| Parties | Seymour, Appellant, v. The Citizens' Railway Company |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Reversed and remanded.
A. R Taylor for appellant.
(1) The plaintiff having been received as a passenger upon defendant's car and on the step of the front platform and being ready to pay his fare as such, and defendant having provided no better or safer place for plaintiff to ride as such passenger, he, as such passenger on said step, was entitled to the highest practical care for his protection there. Wilmot v. Railroad, 16 S.W. 500; Wagner v. Railroad, 97 Mo. 521; McGee v. Railroad, 92 Mo. 217; Muehlhausen v. Railroad, 91 Mo. 344; Burns v. Railroad, 50 Mo. 140. (2) Standing on the step of the front platform is not negligence per se, even though there be room inside the car. Case is for the jury. Wilmot v. Railroad, supra; Railroad v. Walling, 2 American & English Railroad Cases (Pa.), 20; Dickinson v. Railroad, 53 Mich. 459; Railroad v. Werle, 98 N.Y. 650; Railroad v. May, 27 American & English Railroad Cases (N. J.), 152; Railroad v. Gallagher, 108 Pa. St. 524; Railroad v. Walling, 97 Pa. St. 61; Powers v. Boston, 27 N.E. 996; Railroad v. Hurst, 93 U.S. 294; Tabby v. Railroad, 82 Mo. 300; Hulsenkamp v. Railroad, 37 Mo. 539; McKeon v. Railroad, 42 Mo.; Nissen v. Railroad, 19 Mo.App. 662.
Smith P. Galt for respondent.
(1) The non-suit was properly granted. When a person knowingly takes a position which is a direct, evident and necessary exposure to danger from the injury which he receives, and the being in that position contributes to or is the proximate cause of the receiving the injury, then he directly contributes to it, and cannot make another party pay him the damages sustained by reason of his own act. And the record here demonstrates that that is this case. (2) By the very terms of the act of 1869, pleaded as an additional defense, the defendant was not liable for injuries occasioned to plaintiff by his getting on "the front or forward end of the car."
The plaintiff brought this suit against the defendant, a street railway company, to recover damages for injuries which he sustained while a passenger on one of defendant's cars. At the close of the plaintiff's evidence, the defendant interposed a demurrer thereto, which was sustained, and the plaintiff appealed.
The evidence discloses the following facts: The defendant's road runs east and west along Easton avenue in the city of St. Louis. At the time of the accident the defendant was converting its horse railroad into a cable road. The accident occurred on Sunday, the eighteenth of December, 1887. On that day the plaintiff had been engaged in finishing up the new track by putting gravel between the paving stones at a point near Taylor avenue, which was about three fourths of a mile west of the place of the accident. The plaintiff was in the employ of contractors, and was not in the employ of defendant. At five o'clock in the evening of that day he took a car going east. According to his evidence he got on the car when it stopped at Taylor avenue. It seems the car was full of passengers so that there was neither sitting nor standing room on the inside. He first went to the rear platform, but found so many persons standing on it that he could not get on. He then went to the forward platform and found that crowded with passengers. There was an iron gate at the front platform extending from the outer side of the car across the platform to the dashboard, and the gate extended down to within a few inches of a step leading up to the platform, which step extended out six or seven inches beyond the outer line of the car. He and another person by the name of Kelly stood on this step. After going one or two blocks the driver, who was at the dashboard, said to them "you had better take out the gate and get inside." They took the gate out but could not find standing room on the platform. Plaintiff said "I will try to sit down here and hold the gate." It seems he proposed to sit on the edge of the platform, resting his feet on the step, and held the gate in his lap, but the driver would not allow him to do that. Being asked why he did not stand on the inside of the gate and put it up, he said, "I could not stand there; I had no room on the step inside of the gate." The driver then told him to get on the outside and put the gate in its place. Plaintiff and Kelly then put the gate in place and stood on the step outside of it. They occupied this position while going a distance of about a half mile. The plaintiff held to the car with his left hand and to the gate with his right with his dinner bucket on the right arm. Kelly held to the gate with one hand and to the dashboard with the other. When they reached Sarah street the plaintiff was struck by a projecting timber of a derrick standing on the street and knocked off. He fell upon the side of an embankment extending some eighteen inches or two feet above the track; his feet slipped under the car wheels. Both legs were crushed so as to necessitate amputation below the knees.
The defendant company had nothing to do with this derrick. It was a large contrivance used by contractors in constructing a sewer and was moved along as the work of the sewer progressed. It consisted of timbers, pulleys, a track and a dumping apparatus. The end next the car was about four feet high and the other end much higher. At the lower end a timber projected out within ten inches of the passing car, and it was this projecting timber which struck the plaintiff. A policeman who reached the place a few minutes after the accident says he found a nail in the end of the timber with an unlighted lamp hanging on it. This projecting timber was on a line with the lower edge of the windows of the car, that is to say half way up the car.
It appears Kelly, the other person standing on the step, was not injured. The evidence tends to show that he was leaning over the dashboard talking to the driver.
The derrick had been at or near this place for several days and the plaintiff had seen it in going to and from his work. He knew they were constructing a sewer at that point. He says he did not see the derrick at the time of the accident, and did not know how close it was to the car. The derrick was on the south side of the street car track, which track had been moved from the north side of the street on the morning of the day of the accident, thus throwing the cars nearer to the projecting timber than before.
Plaintiff says that at the time of the accident he was looking out sideways, more to the east than to the north; that he was looking for teams on the road belonging to his boss. His evidence tends to show that he stated on the former trial that he feared these wagons might catch him and he was looking out for them, but on the last trial he says he was just looking to see where they were. It appears the car was moving on a down grade, and one witness says it was going as fast as he ever saw a car go. The plaintiff says the car was going "as fast as they could travel at that grade." The plaintiff had not paid his fare at the time of the accident, but says he had the money in his pocket to pay it when demanded.
When speaking of the time the driver told him to replace the gate, the plaintiff was asked this question: The plaintiff says he had observed these horse cars for two months, that they carried passengers on the platform when crowded, and that on such occasions they carried passengers on the front and rear steps.
1. It is conceded on all hands that the plaintiff was a passenger on this car; and the question here is whether he was, as a matter of law, guilty of contributory negligence in riding on the step on the outside of the gate. The law is now well settled that it is not negligence per se on the part of a passenger on a horse car to ride on the platform, and this is true whether there is or is not room in the car. The passenger being on the platform when injured by the negligence of the driver or other servant of the defendant, the question of contributory negligence is one for the jury and not for the court. Burns v. Railroad, 50 Mo. 139; Railroad v. Walling, 97 Pa. 55; Maguire v. Railroad, 115 Mass. 239; Railroad v. May, 27 American & English Railroad Cases, 151; Meesel v. Railroad, 8 Allen 234; Nolan v. Railroad, 87 N.Y. 63; Fleck v. Railroad, 134 Mass. 480; Upham v. Railroad, 85 Mich. 12, 48 N.W. 199; Lehr v. Railroad, 118 N.Y. 556, 23 N.E. 889.
There can be no doubt but riding on the step or platform of such a car is attended with more danger than riding in the car; and if a passenger will take a position upon such a place in violation of the rules of the company and the warning of the servants in charge of the car, he is guilty of negligence. Wills v. Railroad, 129...
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