Schaefer v. St. Louis & S. Ry. Co.

• Decision Date: 26 March 1895
• Citation: 30 S.W. 331,128 Mo. 64
• Court: Missouri Supreme Court
• Parties: SCHAEFER v. ST. LOUIS & S. RY. CO.

30 S.W. 331

128 Mo. 64

SCHAEFER v. ST. LOUIS & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 26, 1895.

ACTION AGAINST RAILROAD COMPANY — PERSONAL INJURIES — ATTEMPT TO BOARD MOVING CAR — INSTRUCTIONS.

1. A charge declaring one to be a passenger who attempted to get on a car, with the intention of paying his fare when called upon, without qualification as to the time, place, or manner of such attempt, is erroneous.

2. A charge that if plaintiff, without negligence on his part, was injured in attempting to board defendant's train, "then the burden is thrown upon the defendant to show" that it was free from negligence, was properly refused.

3. An instruction directing a verdict for defendant if plaintiff was negligent in attempting to board a moving car, and such negligence contributed to his injury, was not prejudicial to the plaintiff, it appearing that he made such attempt.

4. Where the real issue is as to plaintiff's contributory negligence in attempting to board defendant's car, instructions are not objectionable because they do or do not recognize him as a passenger.

5. An instruction presenting an issue in support of which no evidence has been introduced is harmless error.

6. An instruction erroneously limiting the liability of defendant is cured by a verdict which exempts him from any liability.

7. It is proper for the court or members of the jury to question witnesses on points not clearly brought out in the case.

Appeal from circuit court, St. Louis county; Rudolph Hizel, Judge.

Action by Conrad Schaefer against the St. Louis & Suburban Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Carlisle & Ottofy, for appellant. Lee & McKeighan and Montague Lyon, for respondent.

ROBINSON, J.

This is a suit brought by plaintiff to recover $5,000 damages for injuries alleged to have been received at one of the defendant's stations on the St. Charles Rock road, in the city of St. Louis, on August 9, 1892. Defendant is a street-railroad company, operating its line by electric power. Plaintiff's petition states that as he was about to board one of the trains on defendant's road for the purpose of being transported as a passenger from its station, and while he was in the act of getting on said train at its platform, but before he had done so, the said train, owing to the negligence and carelessness of the employés or servants of defendant in charge thereof, was suddenly started, and he was thereby thrown violently down upon the platform, and dragged thereon, and that he was thereby greatly bruised and severely injured, both internally and in his limbs. The answer was a general denial, coupled with a plea of contributory negligence, and followed by the usual replication. There was a trial by jury, and verdict for defendant. Many errors are assigned by appellant, but it is only necessary to notice a few of them, in order to show the result we have reached. The testimony in brief shows that plaintiff lives at Wellston, on the south side of the old St. Charles road, about 73 steps west of defendant's track; that his house stands back 10 or 15 feet from the street; that on the morning in question, between 6 and 7 o'clock, he started from his home down town to work; that when he reached the platform he saw a car coming, waved his hand at the motorman to stop, and as the car came by the platform the motorman made a kind of a "jerk stop," as he expressed it; that he got his right foot on the step of the motor car, and then the motorman made a jerk, and he fell on the platform, but kept hanging with his right foot, and was dragged, he thinks, about 5 feet, to the other end of the platform; he tried to get on the back platform of the motor car, and stepped up with his right foot on the first step; that the train stopped about 25 feet below the platform. When the train did stop he got on and went to his work. There were two cars in the train, — a motor, and one attached thereto, called "a trailer." The conductor was standing on the front platform of the trailer. Plaintiff testified that the car was going "down the hill pretty fast," and that "they came down tolerably fast" always. Plaintiff further testified that "the right stop was made twenty-five feet below the platform, and that this stop was made for him to get on down there."

It seems useless to go into the evidence at any greater length. It shows that the plaintiff was standing on the platform, saw the train coming, and waved his hand for it to stop; that it was coming fast, the motorman endeavoring to stop it at the platform, but failed to do so; that the plaintiff endeavored to board the train before it did stop.

Appellant complains, first, that the court erred in refusing to give instructions Nos. 1 and 2 asked by plaintiff, which read as follows: "(1) The court instructs the jury that although when the occurrence in question happened the plaintiff had not paid his fare, and by reason of such event got off without paying, yet if the jury believe from the evidence that he got on the step of the car for the purpose of getting upon the platform as a passenger, with the intention of paying his fare when called upon, then he was a passenger, and the defendant owed to him the same duties as if in fact he had paid his fare. (2) The court further instructs the jury that if they believe from the evidence that plaintiff was a passenger on one of defendant's cars (and while exercising reasonable care and diligence with respect to his own safety), the car was suddenly started, causing the injury now being inquired into, then the burden is thrown upon the defendant to show to the satisfaction of the jury that the servants and employés of the defendant managing the car exercised the utmost human care in the management of the same, or that the accident occurred by reason of some cause not under the control of the servants and employés of defendant, and unless the defendant has so satisfied the jury their verdict should be for the plaintiff."

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