Kuttner v. Lindell Ry. Co.

• Decision Date: 28 February 1888
• Parties: ELIAS M. KUTTNER, Respondent, v. LINDELL RAILWAY COMPANY et al., Appellants.
• Court: Missouri Court of Appeals

29 Mo.App. 502

ELIAS M. KUTTNER, Respondent, v. LINDELL RAILWAY COMPANY et al., Appellants.

Court of Appeals of Missouri, St. Louis.

February 28, 1888

APPEAL from the St. Louis Circuit Court, HON. GEORGE W. LUBKE Judge.

Affirmed.

DYER LEE & ELLIS, for the appellant, Lindell Railway Company.

M. F TAYLOR, for the appellant, Cable Railway Company: It is the duty of the common carrier to transport its passengers with safety, if that result can be obtained by the exercise of the utmost human skill, foresight, and diligence. Story on Bailments, sec. 601; Lemon v. Chanslor, 68 Mo. 340; Gilsinn v. Railroad, 76 Mo. 282; Leslie v. Railroad, 88 Mo. 50; Hipsley v. Railroad, 88 Mo. 348. The common carrier is liable only for the want of ordinary care towards other than its passengers. Doss v. Railroad, 59 Mo. 29; Conway v. Reed, 66 Mo. 346. The allegation and proof that the passenger was injured in a collision between his carrier's conveyance and that of a third party, which collision could have been avoided by the exercise of proper diligence on the part of his carrier, preclude his recovery as against the third party. Thorogood v. Bryan, 8 C. B. 31; Bridge v. Railroad, 3 M. & . W. 244; Lockhart v. Lichtenthaler, 46 Pa. 151; Child v. Hearn, 9 Exch. 176; Armstrong v. Railroad, 10 Exch. 47; Catlin v. Hills, 8 C. B. 126; " " " " " The Benina, " 11 P. D. 31; Simpson v. Hand, 6 Wh. 311; Railroad v. Boyer, 97 Pa. 91; Smith v. Smith, 2 Pick. 621; Railroad v. Ferry, 8 Ohio 570; Puterbaugh v. Reasor, 9 Ohio 484; Bryan v. Railroad, 31 Barb. 335; Nichols v. Railroad, 27 Up. C. 382; Payne v. Railroad, 39 Iowa 523; Railroad v. Miller, 25 Mich. 274; Carlisle v. Sheldon, 38 Vt. 440; Peck v. Railroad, 50 Conn. 379; 14 Am. & Eng. Ry. Cases, 633; Railroad v. Goddard, 25 Me. 185. The negligence of the person in charge will be imputed to an infant. Waite v. Railroad, 96 Eng. C. L. 728; Houfe v. Fultot, 29 Wis. 296; Prideaux v. Mineral Point, 43 Wis. 513; Payne v. Railroad, 39 Iowa 523; Railroad v. Miller, 25 Mich. 247; Holly. v. Railroad, 8 Gray 132; Railroad v. Straton, 78 Ill. 88; Leslie v. Lewiston, 62 Me. 468; City of Joliet v. Seward, 86 Ill. 406; Hateway v. Railroad, 46 Ind. 25; Stilson v. Railroad, 67 Mo. 671; Donahue v. Railroad, 83 Mo. 560; Smith's Leading Cases (3 Eng. Ed.) 366; Thompson on Carriers, 284; Chapman v. Railroad, 19 N.Y. 341; Bennett v. Railroad, 36 N.J. Law, 225.

JOSEPH DICKSON and ELENEIOUS SMITH, for the respondent: The Thorogood case has been severely criticised by many English judges, and has been dissented from by a great majority of the American courts. Cuddy v. Horn, 46 Mich. 596; Chapman v. Railroad, 19 N.Y. 341; Barrett v. Railroad, 45 N.Y. 630; Dyer v. Railroad, 71 N.Y. 228; Thompson on Carriers of Passengers, 273, et seq.; Railroad v. Shacklet, 105 Ill. 364; Colgrove v. Railroad, 20 N.Y. 492; Webster v. Railroad, 38 N.Y. 260; Cooper v. Turnpike Co., 75 N.Y. 116; Railroad v. Case, 9 Bush 728; Turnpike Co. v. Stewart, 2 Metc. (Ky.) 119; Patterson on Railway Acc. Law, sec. 357; Hunt v. Railroad, 14 Mo.App. 160; S. C., 89 Mo. 607. An instruction in the nature of a demurrer to the evidence, asked at the close of plaintiff's case, is waived, where defendant proceeds with his evidence and supplies the defects of plaintiff's case. McCarthy v. Railroad, 15 Mo.App. 385; Cadmus v. Telegraph Co., 15 Mo.App. 86; Bolt & Iron Co. v. Buell, 8 Mo.App. 594; Goodyear v. Finn, 10 Mo.App. 226.

OPINION

THOMPSON J.

This was an action for damages for personal injuries claimed to have been produced by the concurring negligence of the two defendants. The petition charges in substance that the defendants are corporations engaged in the business of common carriers of persons for hire, by means of horse-cars, upon certain streets of the city of St. Louis; that, on the twenty-ninth day of December, 1886, the said Lindell Railway Company received plaintiff upon one of its cars as a passenger, and that he paid the fare required of passengers; that, while a passenger on said car, the car in which he was riding, at the intersection of Vandeventer avenue and Morgan street, collided with the grip-car of the defendant, the St. Louis Cable & Western Railway Company, and that, by reason of said collision, the plaintiff, who, having seen that said collision was likely to occur, had arisen from his seat and reached the doorway of said car, was thrown violently out of said car, upon the track of the defendant's road, and thereby suffered great injury, etc.

The answer of the St. Louis Cable & Western Railway Company is a general denial. The answer of the Lindell Railway Company is: (1) A general denial; (2) contributory negligence by the plaintiff; (3) that the plaintiff's injuries were brought about through the fault and neglect of its co-defendant, and without fault or neglect on its part.

The evidence at the trial tended to show that the defendant, the Lindell Railway Company, operates a line of street cars in the city of St. Louis, drawn by horses; and that the defendant, the St. Louis Cable & Western Railway Company operates a line of street cars in St. Louis, the motor power of which is an underground cable, propelled by a stationary engine, to which cable its cars are attached, and from it detached, by means of a grip, operated by an employe called a " gripman" , by means of a lever; that the accident took place after dark, in the evening; that the plaintiff had taken passage upon a car of the defendant, the Lindell Railway Company, which car was of the familiar pattern known as a " bobtail" , drawn by two horses in charge of a driver; that the railway of the Lindell Company runs north and south on Vandeventer avenue, and that the railway of the Cable Company runs east and west on Morgan street, so that the tracks of the two companies cross each other at right angles at the intersection of Morgan street and Vandeventer avenue; that the conformation of the ground and the location of adjacent buildings is such that when a car of the Lindell Company, going north, reaches a point within sixty feet of the south track of the Cable Company which is used by its east-bound cars, the driver of the car of the Lindell Company can see to the west along the track of the Cable Company for the space of one hundred and forty-three feet; that the cars of the Cable Company and the particular car which was involved in the accident carried a strong headlight lantern, capable of throwing a light along the street in front of the car to the distance of about half a block; and that when the cars of the Cable Company approach an intersecting street they sound a gong to warn travelers approaching their track at the intersection. On the evening of the accident the evidence tended to show there had been a slight fall of wet snow which had melted, leaving the tracks wet. The track of the Lindell Company, at its intersection with that of the Cable Company, and for some distance either way, is substantially level; but the track of the Cable Company approaches its intersection with the Lindell track from the west at a slight incline or down-grade. In this situation the car of the Lindell Company, in which the plaintiff was a passenger, was traveling north along Vandeventer avenue, at an ordinary rate of speed. The night was dark and cloudy. According to the testimony of the driver of the Lindell car, he saw the cable car approaching rapidly, from the west, at a distance of about seventy-five or one hundred feet away. He concluded that he could not stop his car before his horses would be upon the track of the Cable Company...