21 S.W. 739 (Mo. 1893), Seymour v. The Citizens' Railway Company

Citation:21 S.W. 739, 114 Mo. 266
Opinion Judge:Black, P. J.
Party Name:Seymour, Appellant, v. The Citizens' Railway Company
Attorney:A. R. Taylor for appellant. Smith P. Galt for respondent.
Case Date:February 27, 1893
Court:Supreme Court of Missouri
 
FREE EXCERPT

Page 739

21 S.W. 739 (Mo. 1893)

114 Mo. 266

Seymour, Appellant,

v.

The Citizens' Railway Company

Supreme Court of Missouri, First Division

February 27, 1893

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."

OPINION

Page 740

[114 Mo. 268] Black, P. J.

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 [114 Mo. 269] 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 [114 Mo. 270] 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...

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