Fillingham v. St. Louis Transit Co.

• Decision Date: 17 November 1903
• Citation: 102 Mo. App. 573,77 S.W. 314
• Court: Missouri Court of Appeals
• Parties: FILLINGHAM v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

77 S.W. 314

102 Mo. App. 573

FILLINGHAM v. ST. LOUIS TRANSIT CO.^*

Court of Appeals at St. Louis, Missouri.

November 17, 1903.

CARRIERS—PASSENGERS—STREET CAR—INJURY IN ALIGHTING—SUFFICIENCY OF PETITION—PRELIMINARY STATEMENT OF COUNSEL—EFFECT—ASSUMPTION OF RISK—DURATION OF CONTRACT OF CARRIAGE—INSTRUCTION AS TO DEGREE OF CARE—CONTRIBUTORY NEGLIGENCE.

1. A passenger alleged that the defendant company operated an electric line through a country district; that the car she was on was an open one; that at a regular station defendant maintained an elevated wooden platform; that plaintiff notified the conductor of her desire to alight at this station, and that it was the duty of the carmen to stop opposite the

platform, but they carelessly ran the car beyond that, and stopped where the ground was three or four feet below the running board and the surface was rough; that when the car stopped the conductor carelessly called the name of the station, and waited for plaintiff to alight, without offering to assist her; and that in attempting to step carefully onto the ground, by reason of the great distance and the uneven surface, she fell and was injured. Held, that the petition stated a cause of action, though it was not expressly averred that the place where the car stopped was unsafe or dangerous.

2. The opening statement of counsel as to what he expects the evidence will disclose is not an admission binding on his client, so as to form a basis for a nonsuit.

3. The doctrine of assumption of risk has no application to the case of a passenger injured while attempting to alight from an electric car at a dangerous place selected by the carmen, though she made no demand to have the car returned to a safe place for alighting.

4. A passenger's contract for carriage on an electric car covers the period needed for safely alighting therefrom, during which she is entitled to be shown the highest degree of care.

5. In an action by a passenger for injuries, an instruction that defendant is held to "the utmost care, skill, and vigilance," accompanied by a recital of the particular facts which will sustain a recovery, is not ground for reversal, in the absence of a request for amendment, though it does not define the degree of care specified as that which would be exercised under the circumstances by very cautious men.

6. An electric car running through a country district ran past a platform provided for the exit of passengers and across a road, where it stopped to permit a passenger to alight, the conductor calling the station. There was a footboard along the side of the car, and plaintiff was permitted to alight, without assistance or remonstrance from the carmen, at a place testified by her to have been 3 or 4 feet, and by others 22 inches, below the footboard, and where the ground was uneven. Held, that she was not necessarily guilty of contributory negligence, though she failed to go along the footboard to the rear of the car, which was opposite a level piece of ground.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Phœbe Fillingham against the St. Louis Transit Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. Judson & Green, for respondent.

Opinion.

GOODE, J.

The point is made in this case—which is one to recover damages for personal injuries—that the petition is fatally defective in failing to show any connection between the negligence charged against the defendant and the injuries to the plaintiff. To deal with that point, a synopsis of the petition will be given. After charging that the defendant owns and operates an electric railway in the city of St. Louis and northwardly therefrom through St. Louis county to Creve Coeur Lake, the petition states that the plaintiff was heretofore a passenger on one of the defendant's cars traveling over said country line; that the car was an open one, with a footboard on either side for the use of passengers in entering and leaving it; that one of the regular stations on the line for receiving and discharging passengers was at Woodson Road, a wagon road intersecting the railway three or four miles west of the city limits; that at said station defendant maintained an elevated wooden platform for the safety and convenience of passengers in entering and leaving its cars, which platform was located on the north side of its track, and immediately west of Woodson Road, and was known as "Woodson Road Station"; that plaintiff notified the conductor of the car she was on of her desire to leave it at Woodson Road, and that it was the duty of the carmen to stop opposite said wooden platform for her to alight, but that they carelessly ran the car beyond the platform across Woodson Road, and brought it to a stop some distance west of both the platform and the road, at a place where the ground was three or four feet below the running board of the car from which passengers had to step in alighting, and where the surface of the ground was rough; that when the car came to a stop at that place the conductor carelessly called the name of said station, and waited for plaintiff to alight, without having the car returned to the platform, and without assisting or offering to assist her; that plaintiff thereupon attempted to step carefully from the railing of the car, and in doing so, by reason of the great distance from the railing to the ground underneath, and on account of the uneven surface of the ground, fell, and was severely injured. In addition there is an averment as to the extent of her injuries. The testimony for the plaintiff went to prove the truth of everything alleged.

The objection made to the sufficiency of the petition is that there was no averment that the place where the car stopped was dangerous for an alighting person. It is true the adjective "unsafe" or "dangerous" is not used in the petition, but the description of the spot shows it was an inconvenient place, necessitating an awkward descent from the footboard. According to the petition, the surface of the ground was three or four feet from the footboard of the car, and was, moreover, rough, and liable to cause her to fall. It is charged, besides, that there was a platform where it was customary to let passengers off, and that, instead of stopping the car at the platform, the carmen ran past it, then stopped opposite low ground, and the conductor called out her station, and permitted her to get off without assistance or remonstrance. The stated acts of the defendant's employés in charge of the car were negligent acts, and they are pleaded as the cause of the injury to the plaintiff; so the assignment against the sufficiency of the petition is overruled.

2. Error is assigned because the circuit court refused to nonsuit the plaintiff on the opening statement made by her counsel. That statement was not a solemn admission in court of facts material to the case, but was a mere recital of what facts counsel expected the evidence would disclose. Such a statement to the jury is intended to help them grasp the bearing of the evidence on the issues, and ought to be truthfully given. But the law in this state does not authorize the nonsuit of a party on a statement of anticipated proof, which, perchance, contains something that might, if established by evidence, result in a nonsuit. Parties are bound by the admissions of their counsel, during trial, of facts material to the issue to be tried, as such admissions dispense with the necessity of proving the doubtful fact. Pratt v. Conway, 148 Mo. 291, 49 S. W. 1028, 71 Am. St. Rep. 602. But a mere preliminary outline by counsel of what he expects the evidence will be is not a solemn admission to take the place of proof. Russ v. Railroad, 112 Mo. 45, 20 S. W. 472. Aside from this legal proposition, the statement made by the counsel in this case, if it had had the effect of a solemn admission in open court, would have afforded no ground for a nonsuit; for it substantially followed the petition, and showed a prima facie case.

3. Before taking up the other points involved in the appeal, we will dispose of the defense of assumption of risk, which is insisted on by the defendant; for we wish to emphasize the proposition that, when a plaintiff in an action for damages for an alleged negligent tort is shown to have assumed the risk, this puts out of the case all questions relating to the degree of care the defendant was bound to observe, or whether he was negligent, or the plaintiff guilty of contributory negligence. If the risk was assumed, and the circumstances were such that it could be legally assumed, there is no liability for mere negligence. That Mrs. Fillingham assumed the risk of injury in alighting from the car is asserted on an assumption that her own testimony shows she observed and estimated the length and difficulty of the step she had to take to reach the ground before taking it; that, therefore, she appreciated the danger, and voluntarily risked it. In point of fact her testimony hardly bears out this contention, since she swore she had not time to examine the ground well, and that the distance was more than she supposed. But, aside from the effect of her testimony, what, we ask, has the doctrine of assumption of risk to do with this case? That doctrine generally pertains to controversies between masters and servants, although litigation, attended by circumstances which make the defense available, may arise between parties not sustaining that relation. Warren v. Ry., 163 Mass. 484, 40 N. E. 895. Arise where it may, the defense is one which must rest on contract; or, if not exclusively on contract, then on an act done so spontaneously by the party against whom the defense is invoked that he was a volunteer, and any bad result of the act must be attributed to an exercise of his free volition, instead of to the conduct of his adversary. Adollf v. Columbia Pretzel Co. (Mo. App.) 73 S. W. 321. The...