Jackson v. The Grand Avenue Railway Company

• Decision Date: 21 November 1893
• Citation: 24 S.W. 192,118 Mo. 199
• Parties: Jackson, Appellant, v. The Grand Avenue Railway Company
• Court: Missouri Supreme Court

24 S.W. 192

118 Mo. 199

Jackson, Appellant, v. The Grand Avenue Railway Company

Supreme Court of Missouri, Second Division

November 21, 1893

Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.

Affirmed.

C. V Fyke and Fyke & Hamilton for appellant.

(1) The court erred in permitting defendant to read in evidence section 848 of ordinance numbered 41982. Railroad v Mills, 11 American and English Railroad Cases, 128. (2) The court also erred in permitting defendant to prove how crossings at Ninth and Walnut streets were usually made. Ibid. (3) The court erred in overruling plaintiff's objection to the following question: "I will ask you Mr. Maywood, whether or not the safety of the people traveling that street, either on street cars or vehicles, requires that the cars should move forward on the signal of the flagman." The fact to be elicited, if material, was not a matter of expert evidence, and the question called for the opinion of the witness, and was inadmissible. Koons v. Railroad, 65 Mo. 592; Brown v. Railroad, 89 Mo. 152. (4) The court erred in refusing to permit plaintiff to prove in rebuttal by the witness, Pigeon, that the car came to a stop south of Ninth street, and also in striking out the answer of the witness to the question: "Do you know whether the conductor saw this woman when she was getting off the car?" Lemon v. Chanslor, 68 Mo. 340. (5) The court erred in refusing plaintiff's instruction numbered 3 as asked, and in modifying the same, and giving the same as modified. (6) The court erred in refusing plaintiff's instruction numbered 4. The defendant owed plaintiff, while a passenger, the utmost care and vigilance to permit her to alight in safety from the car. Huetsenkump v. Railroad, 37 Mo. 538; Hipsley v. Railroad, 88 Mo. 348; Dougherty v. Railroad, 97 Mo. 647; Furnish v. Railroad, 102 Mo. 438; Railroad v. Higgs, 34 American and English Railroad Cases, 529; Railroad v. Derby, 14 How. (U.S.) 468; Smith v. Railroad, 16 American and English Railroad Cases, 310; Railroad v. Twiname, 30 American and English Railroad Cases, 616. (7) The court erred in refusing plaintiff's instructions, numbered 6 and 7.

Karnes, Holmes & Krauthoff for respondent.

(1) The rules governing horse cars are entirely inapplicable to the new and improved motors now in general use. Hickman v. Railroad, 47 Mo.App. 65. (2) The ordinance of the City of Kansas was properly admitted in evidence; plaintiff being an inhabitant of the city was bound by its ordinances, and also to take notice of them. 1 Dillon on Municipal Corporation [4 Ed.], secs. 355, 356; Inhabitants v. Morton, 25 Mo. 593; Banking Co. v. Brunswick, 87 Ga. 386; Cummings v. Railroad, 104 N.Y. 669; Railroad v. Calderwood, 89 Ala. 247. (3) The ordinance was admissible as a foundation for defendant's rule that its cars should, for the purpose of discharging passengers, stop only at the far crossing. If it appeared that plaintiff was injured while violating a rule of defendant, she cannot recover. A passenger must conform his actions to the reasonable rules and regulations of the carrier. Hutchinson on Carriers, sec. 587, et seq.; 1 Rorer on Railroads, p. 227; 2 Rorer on Railroads, p. 979, et seq.; 2 Harris on Damages by Corporations, pp. 656, 712, 713. "If the passenger would hold the carrier to the full measure of his responsibility for safe carriage, he must conform to all the reasonable rules the carrier makes." Beach on Contributory Negligence [2 Ed.], sec. 151. (4) There was no error in the admission of the evidence of Mr. Maywood in answer to the question whether or not the safety of people traveling the street at the locality of the accident required that the cars should move on the signal of the flagman. Even if error, it is not such as to cause a reversal of the judgment. Fisher v. Railroad, 22 Ore. 533; Symms v. Bank, 48 Kan. 713; Julian v. Calkins, 85 Mo. 202; Redmon v. Piersol, 39 Mo.App. 173. (5) The complaint of the exclusion of the evidence of the witness, Pigeon, in rebuttal, is without merit. Christal v. Craig, 80 Mo. 367; State v. Pratt, 98 Mo. 482; Ashley v. Greene, 40 Mo.App. 288. (6) The fourth instruction asked by the plaintiff was properly refused. It sought to announce the doctrine that defendant, as a common carrier, "owed to plaintiff the duty of exercising the utmost care and prudence." Smith v. Railroad, 108 Mo. 243; Spohn v. Railroad, 101 Mo. 417; Wilmott v. Railroad, 106 Mo. 535; Gilson v. Railroad, 76 Mo. 282. (7) Defendant's third instruction stated the law correctly. It was not to be anticipated that a passenger would get off the car where he had no business to do so. Railroad v. Green, 81 Ill. 19. (8) Defendant's fifth instruction was properly given. Sinex v. Railroad, L. R. 3 Exch. 150; Kitchen v. Railroad, 69 Mo. 265; Roan v. Winn, 93 Mo. 503. (9) On the whole evidence the verdict is the only one that could have been rendered and is in consonance with justice.

OPINION

Gantt, P. J.

The appellant, a married woman, fifty-two years old, brought this action against the defendant, a street car company, operating a cable railway upon Walnut, Fifteenth and other streets, in Kansas City, Missouri, for damages, resulting from a fall from one of its cars, and caused as she alleges by the sudden and negligent starting of the car, just as she was alighting on Walnut street, near Ninth street. The injury occurred September 24, 1889. There was a verdict for defendant in the circuit court.

The answer was: First. A general denial. Second. That plaintiff so negligently and carelessly conducted herself in alighting from said street car, that the accident and injury were occasioned thereby wholly or in part, and but for said negligence and carelessness of the plaintiff said accident and injury would not have occurred. Third. That in and by section number 848 of an ordinance of the city of Kansas City, numbered 41982, approved May 12, 1888, entitled "Revised Ordinance of the City of Kansas," it is provided as follows:

"No car or the animals drawing the same shall be stopped on any street crossing. When the conductor or driver of any car is requested to stop at the intersection of streets to leave or receive passengers, he shall stop such car so as to leave the rear platform thereof slightly over the crossing."

"And defendant further states that at the time of said accident, and for a long time prior thereto, the defendant kept posted in said street cars a notice to the effect that pursuant to the city ordinance its cars would stop on further street crossings only. And this defendant further states that the street car, mentioned in the petition, did not stop on the south side of Ninth street for the purpose of permitting plaintiff to alight therefrom, and plaintiff had no right to suppose that said car would stop at said place for the purpose of permitting her to alight therefrom; and this plaintiff further states that the cars of this defendant are operated on Walnut street and run north and south, and that Ninth street is occupied by a cable street railway known as the 'Kansas City Cable Railway Company,' on which its cars are operated, running east and west, thus making a cable street railway crossing at said Ninth and Walnut streets. That a very large number of cars pass east and west on said Ninth street and north and south on said Walnut street at said place of crossing, besides a great many wagons, carriages and other vehicles, and that said place of crossing is one of great danger in the operation of street cars, and is so dangerous as to make it necessary to keep a flagman standing at said crossing for the purpose of signaling street cars and other vehicles when two cross the same, and for the purpose of preventing street cars and other vehicles from crossing said street at a dangerous time, and that it is absolutely necessary for safety of persons using said street and riding in the cars and other vehicles on said streets that the street cars should cross the same when signaled to do so, and that for the safety of such persons it is necessary that said street cars be not under the control of the conductor in crossing said point, but that the same be under the control of said flagman, as aforesaid; and that the car of the defendant company at the time of the accident complained of was undertaking to cross said Ninth street at the signal of the flagman standing there for that purpose, and when the plaintiff attempted to alight therefrom was in the act of being moved forward for the purpose of crossing said street, and would have stopped on the north side of said Ninth street with the rear platform slightly over the crossing for the purpose of permitting the plaintiff to alight therefrom and that she could have alighted therefrom, in perfect safety at said place. And this defendant states that said car either did not stop at the south side of Ninth street or after it did stop had already been put in motion when the plaintiff attempted to alight therefrom.

"Wherefore defendant states that plaintiff was guilty of contributory negligence in attempting to alight from said car at the time and in the manner that she did, and that the injury was occasioned thereby either wholly or a part."

The reply is as follows:

"Now comes the plaintiff in the above entitled case and denies each and every allegation in the amended answer of defendant contained."

On the day of the accident, the plaintiff, a negro woman, and her husband, boarded one of defendant's cars on Fifteenth street for the purpose of riding to Ninth and Walnut streets, and informed the conductor when they paid their fare that they desired to get off at Ninth street. At Ninth street, defendant's tracks, and cable cross the tracks and cable of the Kansas City Cable Railway Company,...