Francis v. St. Louis Transfer Co.

• Decision Date: 18 December 1877
• Citation: 5 Mo.App. 7
• Parties: SARAH E. FRANCIS, Respondent, v. ST. LOUIS TRANSFER COMPANY, Appellant.
• Court: Missouri Court of Appeals

5 Mo.App. 7

SARAH E. FRANCIS, Respondent,

v.ST. LOUIS TRANSFER COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 18, 1877.

1. Carriers of passengers are responsible for the natural, ordinary, and proximate consequences of their acts, but not for such as are remote and extraordinary.

2. A common carrier of passengers contracted to take plaintiff from a railroad depot to her home, but, before arriving there, set her down in the city,

within a mile of her residence, on the sidewalk of a frequented street, on which ran a line of street cars which passed within a square of her house, in daylight, on a dry, but very cold, winter day, the plaintiff being of a delicate constitution, but not sick at the time, and being warmly clad, and in company with an intimate friend. The plaintiff walked home, and in doing so contracted such a cold as permanently injured her health. Held, that the injury was too remote, and the contributory negligence of plaintiff too direct, to warrant a recovery for the sufferings, loss of employment, and permanent injury to the health of plaintiff; and her recovery could only be for the reasonable cost of a conveyance home, and her expenses in endeavoring to avoid exposure to the cold.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

S. M. BRECKINRIDGE and G. A. CASTLEMAN, for appellant: Plaintiff can recover only for damages which are the natural and proximate consequences of defendant's acts. Clark v. Pacific R. Co., 39 Mo. 191; Ballentine v. North Missouri R. Co., 40 Mo. 505; Edelmann v. St. Louis Transfer Co., 3 Mo. App. 503; Pearson v. Duane, 4 Wall. 605. Plaintiff could recover only for the cost of a conveyance to take her home.-- Waters v. Brown, 44 Mo. 302; The State v. Powell, 44 Mo. 436; Brown v. Emerson, 18 Mo. 103.

JOHN D. DAVIS, for respondent: For what defendant will be liable in damages in such a case as the present.-- Williams v. Vanderbilt, 28 N. Y. 217; Heirn v. McCaughan, 32 Miss. 17; Sedgw. on Dam. 438, and notes; Ransom v. New York & Erie R. Co., 15 N. Y. 415; Chicago & Alton R. Co. v. Flagg, 43 Ill. 364; Hamilton v. Third Avenue R. Co., 53 N. Y. 25; Jones v. Steamship Cortes, 17 Cal. 487; Robirson v. Flint, 16 How. Pr. 240; Frink v. Schroyer, 18 Ill. 416; Field on Dam., sec. 667, and cases cited. Where doubt arises as to whether damages are proximate, or speculative and remote, the issue should be presented to the jury by proper instructions.-- Clemens v. Hannibal & St. Joseph R. Co., 53 Mo. 366; Toledo R. Co. v. Puidar, 53 Ill. 447; Perley v. Eastern R. Co., 98 Mass. 444; Kellog v. Chicago & North-western R. Co., 26 Wis. 223. Where a party, by his own contract, creates a charge or duty upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, for he might have provided against it by his contract.-- Helm v. Wilson, 4 Mo. 41; Davis v. Smith, 15 Mo. 467.

BAKEWELL, J., delivered the opinion of the court.

This is an action against defendant, a common carrier, to recover damages for injuries suffered by plaintiff in consequence of defendant's breach of the terms of the contract to carry plaintiff, in one of defendant's omnibuses, from a railroad depot in East St. Louis to plaintiff's residence in St. Louis. It appears from the evidence that plaintiff, at the time of the injuries complained of, was an unmarried woman, residing with her parents on Collins Street, St. Louis, about a mile north of the court-house. She was a milliner by trade, twenty-three years old at the time of the trial, and had resided in St. Louis about six years at the date of the occurrence which is the foundation of this action. For three years she worked at the millinery business, walking daily, winter and summer, from her home to the shop and back, the distance between the points being about a mile. Her health during this time was fairly good, though she was not robust In the summer of 1872 she began to suffer from headache and pain in the side, had to give up work, and change of air was recommended by her physician. Accordingly, in July, 1872, she went to visit a relative in Davenport, Iowa. Whilst there she improved steadily in health, and was in the habit of taking exercise on foot. In December she returned home by rail, apparently quite well. She was warmly clad when she arrived at the depot in East St. Louis, on December 15, 1872. The person in charge of the omnibus of defendant at the depot told her that she would be taken home. With this understanding she got into the omnibus, and again, on the ferry-boat, she asked the agent of defendant whether the omnibus would take her home, and was assured by him that it would; whereupon she paid her fare, fifty cents, with the last money she had about her. She was driven, with other passengers, to the Laclede Hotel, about a mile from her home. The passengers were then told that the omnibus would go no further; and all got out except plaintiff, who refused to move, saying that she had been told before paying her fare that she should be taken home. The driver said that his orders were to go no further, and that if she did not get out he would take her to the stables; and, as she still refused to descend, the driver called to her, “Damn you, get out.” Being afraid that he would use force to put her out, she then left the omnibus. The day was Sunday; the hour, about half-past ten o'clock, A. M. The thermometer stood about eight degrees below the freezing point, and a strong north wind was blowing. There was no snow. Plaintiff thought it was the coldest day she ever felt. She was warmly clad, and sufficiently wrapped up. The point at which she was compelled to leave the omnibus was on the line of a street-car company, whose cars were running, and which passed within one block of plaintiff's house. Plaintiff was, at the time, in company with a young woman, an intimate friend, whom she had met on the cars. She would have had no hesitation in borrowing from her the money to pay her street-car hire. Instead of taking the street cars, she set out to walk home, with this young woman and another passenger. The young woman and the other passenger stopped, after going six squares, at a newspaper store to warm themselves. This store was on the line of the street railway which would have taken plaintiff within a square of home. She continued her walk alone, carrying a small satchel, weighing, with...