29 S.W. 712 (Mo. 1895), Schepers v. Union Depot Railroad Co.

Citation:29 S.W. 712, 126 Mo. 665
Opinion Judge:Macfarlane, J.
Party Name:Schepers v. Union Depot Railroad Company, Appellant
Attorney:O. J. Mudd with G. A. Finkelnburg for appellant. John A. Gilliam and John W. Drabelle for respondent.
Case Date:February 19, 1895
Court:Supreme Court of Missouri
 
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Page 712

29 S.W. 712 (Mo. 1895)

126 Mo. 665

Schepers

v.

Union Depot Railroad Company, Appellant

Supreme Court of Missouri, First Division

February 19, 1895

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards, Judge.

Reversed and remanded.

""O. J. Mudd with ""G. A. Finkelnburg for appellant.

(1) Schepers was not a passenger, and the servants in charge of the car owed him no duty but that of ordinary care to avoid injury to him after they saw him in actual danger. If the deceased presented himself at the proper time and place, and the servants in charge of the car saw him and became aware of his intention to board the train, or by the exercise of proper care would have so seen and become aware -- conditions wholly ignored in this instruction -- then defendant owed him the highest degree of care. But even assuming these conditions the degree of care is erroneously stated in this instruction. ""Dougherty v. Railroad, 97 Mo. 647; ""Furnish v. Railroad, 102 Mo. 438; ""Smith v. Railroad, 108 Mo. 243; ""Jackson v. Railroad, 118 Mo. 199. (2) The court erred in the matter of giving instructions for plaintiff. The petition charges no negligence in failing to have a lifeguard on the car. Plaintiff can not plead one defect and recover on another. ""Buffington v. Railroad, 64 Mo. 246; ""Gurley v. Railroad, 93 Mo. 445; ""Ely v. Railroad, 77 Mo. 34; ""Waldhier v. Railroad, 71 Mo. 514. Instruction number 5, given for plaintiff, was also erroneous in telling the jury that a presumption of law existed in plaintiff's favor, so far as the defense of contributory negligence was concerned. ""Rapp v. Railroad, 106 Mo. 423; ""Moberly v. Railroad, 98 Mo. 183; ""Myers v. Kansas City, 108 Mo. 480.

""John A. Gilliam and ""John W. Drabelle for respondent.

(1) Persons getting on and off these cars are entitled to the protection of passengers. ""Weber v. Railroad, 100 Mo. 210; ""Ridenour v. Railroad, 102 Mo. 270; ""Murphy v. Railroad, 43 Mo.App. 342; ""Swigert v. Railroad, 75 Mo. 475; ""Straus v. Railroad, 86 Mo. 421. (2) The law presumes every man to be using due care for his own safety, and that presumption is not overthrown by the mere fact of his being injured; there must be evidence of carelessness or negligence on his part. ""Buesching v. Gaslight Co., 73 Mo. 233; Shearman and Redfield on Negligence [4 Ed.], secs. 109, 110; ""Hoyt v. City, 41 Wis. 105; ""Gay v. Winter, 34 Cal. 153; ""Allen v. Willard, 57 Pa. St. 374; ""Railroad v. Rowan, 66 Pa. St. 393. Where the evidence of negligence is irresistible it is the duty of the judge to decide, but where the facts, or the inferences to be drawn from them, are in any way doubtful, the whole matter should be submitted to the jury under proper instructions. ""Barton v. Railroad, 52 Mo. 253; ""Pendrill v. Railroad, 34 N. Y. Supr. Ct. 481; ""Dickens v. Railroad, 1 Abb. (N. Y.) App. 504; ""Keller v. Railroad, 2 Abb. (N. Y.) App. 480; ""Fernandes v. Railroad, 52 Cal. 45.

OPINION

[126 Mo. 668] Macfarlane, J.

This is an action, under the statute, to recover the sum of $ 5,000, as damages, for the death of plaintiff's husband by the alleged negligence of defendant's employees in charge of one of its trains of street cars. A trial resulted in a verdict and judgment for plaintiff and defendant appealed.

Defendant operated by electric power a line of street cars along Russell avenue, Twelfth street, and other streets in the city of St. Louis. Russell avenue runs east and west through the city and crosses Twelfth street at right angles. The railway track is located along Russell from the east to Twelfth street, where it turns south by a long curve onto that street. There is a rising grade on the avenue until Twelfth street is reached, from which there is a descending grade of about four feet in one hundred. Two cars, known as the motor car and trailer, were run in a train on the occasion of the death of plaintiff's husband. A curve of the railway track extends down Twelfth street about twenty-seven feet from the center of the cross walk on the south side of the avenue. On the southwest corner of these streets is a saloon having a side door opening to Twelfth street, near the corner of the building. Just prior to the accident, deceased was in the saloon awaiting a train going south on Twelfth street, on which he intended taking passage. On seeing a train passing upon the curve he left the saloon...

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