Johnson v. St. Louis & Suburban Railway Company
| Decision Date | 18 March 1903 |
| Parties | MARY JOHNSON v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jno. A. Talty Judge.
Affirmed.
McKeighan & Watts and Robert A. Holland, Jr. for appellant.
(1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered by the defendant at the close of plaintiff's evidence in chief, and again at the close of all the evidence. The plaintiff in this case alleged that the derailment of the car was due to a particular cause but failed to introduce any evidence showing or tending to show that defendant had any knowledge of said cause, or means of knowledge thereof, in time to avoid the injury to plaintiff. Under this form of pleading it was necessary for plaintiff to establish by evidence not only the existence of a defect, but knowledge or means of knowledge on the part of defendant. Feary v. Railroad, 162 Mo. 75. (2) The court erred in giving instruction 1 at the request of plaintiff, said instruction submitting to the jury the question as to whether or not defendant had any knowledge or means of knowledge of the said defect. Said portion of said instruction was erroneous, because there was no evidence upon which to predicate it. Stone v. Hunt, 114 Mo. 66; State v. Hoke, 102 Mo. 410; Evans v. Interstate Co., 106 Mo. 594; State v. Brown, 145 Mo. 680. (3) The court erred in giving instruction 2 at the request of plaintiff, said instruction authorizing a verdict if the jury found that there was any negligence on the part of defendant instead of limiting the deliberations of the jury to the particular negligence alleged. Chitty v. Railroad, 148 Mo. 64; McMenomy v. Railroad, 135 Mo. 440; Waldheir v. Railroad, 71 Mo. 314; McCarthy v. Hotel Co., 144 Mo. 397. (4) The court erred in giving instruction 3 at the instance of plaintiff, said instruction stating, in effect, that if the plaintiff has proved the derailment, she has thereby made out a prima facie case of negligence against defendant. This instruction is erroneous because plaintiff in her petition saw fit to allege that the derailment was due to a particular cause. It is incumbent upon her, therefore, to prove this particular cause by a preponderance of evidence. Feary v. Railroad, supra. (5) The court erred in refusing to give the instruction which informed the jury that they must be guided solely by the evidence in the case and the instructions of the court, and must be in no way guided by sympathy for the plaintiff. Said instruction correctly stated the law.
D. D. Holmes and B. J. Klene for respondent.
(1) The court properly refused to give the instruction in the nature of a demurrer to the evidence offered by defendant at the close of plaintiff's evidence in chief, and again at the close of the evidence, there having been evidence given to sustain the allegations of plaintiff's petition. (2) Instruction 3, given at the instance of plaintiff, correctly states the law of this case. Och v. Railroad, 130 Mo. 51. (3) The court properly refused instruction D, asked by defendant, for the reason that said instruction in its first part would have been superfluous, in that it would have told the jury that they must do what in effect they had already been sworn to do, i. e., give the parties a fair trial. In its second part said instruction did not correctly state the law. Said instruction told the jury they must in no way be guided by sympathy for the plaintiff. It is too narrow, in that it includes but one of the parties.
This is an action for damages for personal injuries received by the plaintiff on November 17, 1901, near Raymond avenue in St. Louis, while she was a passenger on one of defendant's cars, in consequence of a derailment of the car. There was a verdict for the plaintiff for eight hundred dollars, and the defendant appealed.
The negligence charged in the petition is as follows:
"Plaintiff states that on November 17, 1900, plaintiff was riding as a passenger on a west-bound car belonging to defendant; that at said time the running-gear of said car, that is to say, the wheels, axles and other machinery, by means of which the said car ran along the said track, were defective, and out of order, and unfit for the purpose of supporting the said car on the said track; that the said car was, at the said time, by reason of the said defective running-gear, in a dangerous and unsafe condition, and unfit for the purpose of carrying passengers safely along said track; that the defendant, its officers, agents and servants, in charge of the said railway, and in charge of and operating said street car, knew, or by the exercise of reasonable care and diligence could have known, that the said running-gear of the said car was then and there defective and out of order, and that the said car was in a dangerous and unsafe condition, and unfit for the purpose of carrying passengers safely along said track; that though the defendant and its said officers, agents and servants knew, or by the exercise of reasonable care and diligence could have known, of the unsafe condition of the said car as aforesaid, they permitted the plaintiff, who was ignorant of the said unsafe condition, to remain on the said car without warning her of the danger of riding on the said car; and though the defendant and its said officers, agents and servants knew, or by the exercise of reasonable care and diligence could have known, of the defective running-gear as aforesaid, they carelessly, recklessly and negligently ran the said car along the said track, and into the said curve aforesaid, at a high rate of speed; that as the said car approached the said point aforesaid, that is to say, when the said car was at or near the intersection of Cabanne avenue and the said railway track, and between said Cabanne avenue and Raymond place, and on said curve of said track, because of the said defective running-gear and because of the want of care and precaution on the part of the defendant, its officers, agents and servants in the premises, the said car left the said track, and after running about fifty feet along the ties and ground the said car ran against a large pole, erected about six feet to the north side of said track, striking the said pole with great force and violence."
The answer is a general denial.
The case made is this:
The plaintiff became a passenger for hire on the defendant's car, at the corner of Sixth and Locust streets. The car proceeded safely and without trouble until it arrived at a point in West Morgan street, near the West End postoffice, where the tracks leave the public street, and run, on a curve, onto the defendant's private right of way. In turning the curve the car ran roughly, bumped along, and created the impression that it was off the track. The car was stopped and the conductor and motorman examined the car. One of the passengers (James E. Crabb, who was a witness for the plaintiff) asked the conductor what was the matter, and he replied "that the flange of the wheel was broken." This witness further testified that "one of the wheels had apparently got off the rail; looking out I could see that it was bulging over the rail, but it was not sufficiently so to prevent the motion of the car, and the motorman said 'she will go' and she went." The defendant complains bitterly because the witness was allowed to testify to what the conductor and motorman said about the car at that time. The car was started and after running about fifty feet it was stopped and further examination was made. Then it was started again, and it ran with a "jumping motion," an "irregular movement," "which became marked at curves," with a "rocking motion," as the several witnesses described it. When the car reached Sarah street it was stopped, the conductor and motorman got off and reported to an inspector the condition of the car. The three examined it, and the inspector said to the motorman and conductor, "Take her carefully," "Take it slow." The car proceeded at the usual speed until it reached Raymond avenue, and, as the motorman testified, "when they went around the curve at Raymond avenue the car was going eight or nine miles an hour, just about the usual rate at which cars run around curves." The "irregular movement" of the car became very marked as it was turning the curve, and continued for about fifty or sixty feet, when the car left the track, ran about a car-length on the cross-ties, then left the ties and ran into a fifteen inch telegraph pole that stood about six feet from the track and broke it down, and the plaintiff was injured.
The inspector who examined the wheel at Sarah street testified that he found a chip in the flange of one of the front driving wheels, about an inch and a half long and about an eighth of an inch thick; that such a chip would cause a roughness in the movement of the car in going around a curve but that such a chip would create no danger of derailment, and he decided that the flange was large enough to hold the car on the track even with such a chip in it; that he rubbed the wheels off with his hand and looked at it and did not test it with a hammer as they commonly do when a car is in the shed; that the wheel seemed to be perfectly sound, there was no evidence of any crack in it, and it was in perfect shape except for the chip. The master mechanic of the defendant testified that he visited the scene of the accident and found about seven inches of the flange broken out, and that the pieces of the flange were found in the immediate vicinity; that there was no sign of an old crack in the pieces that were found or of rust or any defects that would lead to a break; that...
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