Parks v. St. Louis & Suburban Railway Co.

• Decision Date: 25 November 1903
• Citation: 77 S.W. 70,178 Mo. 108
• Parties: PARKS v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, AND ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY, Appellants
• Court: Missouri Supreme Court

77 S.W. 70

178 Mo. 108

PARKS v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, AND ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY, Appellants

Supreme Court of Missouri, First Division

November 25, 1903

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

Affirmed.

McKeighan & Watts and Robert A. Holland, Jr., for appellants.

(1) The court erred in refusing to give, at the request of defendants, instructions in the nature of demurrers to the evidence: (a) Because the evidence showed that plaintiff himself was guilty of negligence that directly contributed to cause his injuries. (b) Because the evidence showed that plaintiff deliberately assumed a position which was dangerous, and the dangers of which were known to him. He therefore, assumed the risk of riding where he did. (2) The court erred in giving instruction 3 at the request of plaintiff. Said instruction was erroneous because it assumed the existence of several matters which it was incumbent upon plaintiff to prove. It has been repeatedly held by this court that it is erroneous for a court in an instruction to assume the existence of things which it is incumbent upon the plaintiff to prove. (3) Plaintiff alleged in his petition that he was injured as a result of two cars passing each other in opposite directions in a curve. The evidence offered by defendants tended to show that the cars did not pass each other in a curve at all, and defendants were entitled to an instruction that if the jury believed the cars did not pass each other in a curve at the time the plaintiff claimed to have been injured, then and in that case the plaintiff could not recover, because he failed to sustain the allegations of his petition. A plaintiff must prove his case as he has alleged. Yarnell v. Railroad, 113 Mo. 376; Melvin v. Railroad, 89 Mo. 106; McManamee v Railroad, 135 Mo. 440; Waldheir v. Railroad, 71 Mo. 514; McCarty v. Hotel Company, 144 Mo. 397. (4) The court erred in refusing to set aside the verdict in this case at the request of defendants, on the ground that said verdict was so excessive as to indicate that it was the result of bias, prejudice and passion. Where a verdict is so large as to indicate bias, prejudice and passion on the part of the jury, it is the duty of the court to set it aside. Burdick v. Railroad, 123 Mo. 221; Nicholds v. Crystal Plate Glass Co., 126 Mo. 55; Sawyer v. Railroad, 74 Mo. 147; Haynes v. Town of Trenton, 108 Mo. 123; Gurley v. Railroad, 104 Mo. 211; Trigg v. Railroad, 74 Mo. 147.

William R. Gentry for respondent.

(1) The demurrer to the evidence was properly overruled. The motorman of the Suburban car, Finan, admitted that he knew that Parks and Houlihan were on the step. Yet he rushes heedlessly into the curve, in violation of all rules and the dictates of prudence, without ringing any bell, and tried to pass another car at a point where two empty cars could not pass, much less two loaded as these two were. There was, therefore, abundant evidence of negligence on the part of both companies while both cars were passing through the curve, as alleged. Our courts in this State have passed upon similar cases and have always held that it was proper for such a case to go to the jury. Huelsenkamp v. Railroad, 37 Mo. 537; Seymour v. Railroad, 114 Mo. 266; Wilmott v. Railroad, 106 Mo. 535; Paquin v. Railroad, 90 Mo.App. 118; Sweeney v. Railroad, 150 Mo. 385; Brainard v. Railroad, 61 N.Y.S. 74; Hassen v. Railroad, 53 N.Y.S. 1069; Pray v. Railroad (Neb.), 5 Am. Elec. Cas. 407; Railroad v. Higgs, 38 Kan. 375; Clark v. Railroad, 36 N.Y. 135. In the following additional cases it was held that plaintiffs who were injured while riding upon footboards or steps of cars, were entitled to go to the jury: Railroad v. Lee, 50 N. J. L. 435; Railroad v. Barton, 107 F. 215; Elliott v. Railroad, 18 R. I. 707; Kinkade v. Railroad, 9 Misc. 273; Salzmann v. Railroad, 26 N.Y.S. 311; McGrath v. Railroad, 87 Hun 310. In the following well known cases it was held that it was not negligence per se for passengers to ride upon the platform of a car, and the reasoning applies equally as well to runningboards and steps; in fact, some of them mention those places also: Watson v. Railroad, 91 Me. 584; Meesel v. Railroad, 8 Allen 234; Upham v. Railroad, 12 L. R. A. 129; Sweetland v. Railroad, 51 L. R. A. 783; Trumbull v. Erickson, 97 F. 891; Graham v. Railroad, 149 N.Y. 336; Adams v. Railroad, 9 App. District Columbia 26. See also the following cases which hold that where the plaintiff knows of a danger, or could by exercising ordinary care have known of it, it is still for the jury to pass upon the question of his contributory negligence in not looking, under the circumstances: Kane v. Railroad, 128 U.S. 91; Powers v. St. Joseph, 91 Mo.App. 55; Kinkade v. Railroad, 9 Misc. 273. (2) Instruction 2, given for plaintiff, ended with the proviso: "And that prior to and at the time of said collision, the plaintiff was exercising ordinary care himself," which, as in the preceding instruction, covered the defense of assumption of the risk, as above pointed out. It was copied as nearly as possible from an approved instruction in the case of Sweeney v. Railroad, cited under point I. (3) The collision was a fact about which there was no dispute, and our courts have repeatedly held that it is not error to assume such a fact. Barr v. Armstrong, 56 Mo. 577; Carroll v. Railroad 88 Mo. 248; Bank v. Hatch, 98 Mo. 376; State v. Hollaway, 156 Mo. 222; Schmidt v. Railroad, 163 Mo. 645; Bertram v. Railroad, 154 Mo. 639. (4) The damages are not excessive, but are entirely reasonable. Black v. Railroad, 72 S.W. 559; Malloy v. Railroad, 73 S.W. 159; Hennessy v. Railroad, 73 S.W. 162. That it is proper to consider as an element of damages the loss of the power to procreate, is well established by the best authorities. Railroad v. Harris, 122 U.S. 608; Voorhies on Measure of Damages, Personal Injuries, sec. 64; Brake v. City of Kansas, 75 S.W. 191.

OPINION

VALLIANT, J.

Defendants, two street railway companies, appeal from a judgment for $ 5,000 recovered against them in the circuit court of St. Louis county by the plaintiff on account of personal injuries alleged to have been received by him through their negligence.

There is not much dispute as to the governing facts of the case. In June, 1900, there was a strike among the employees of all the other street railroad companies in the city of St. Louis, and the only street cars running were those operated by the defendant companies. The consequence was, the cars of these two companies were crowded with passengers beyond their normal carrying capacity. People crowded in, filling the bodies of the cars, the platforms and every part where a seat or foothold could be obtained. Plaintiff on June 14, 1900 boarded a west-bound car of the St. Louis & Suburban Railway Company (which we will call the Suburban car) at the crossing of Fourteenth street and Franklin avenue. The car was crowded with passengers to such an extent that the only space plaintiff could obtain on it was standing-room on the step of the front platform outside of the gate that inclosed the platform. There was another man and a boy standing on the step in the same attitude plaintiff took. During the period of this strike, it was not unusual for men to ride on the steps of the platform outside the gates as those men were doing. At the point where plaintiff boarded the car the defendant's railway runs north and south, but a short distance after passing Franklin avenue it turns west, which is its main course. It is a double-track road, and the cars of both defendant companies run over it. The step on which the plaintiff took his position was on the west side of the car going north, which would become the south side after it turned west, and was the inside, that is, the side next to the other track over which the east-bound cars came. The outside line of the step on which the plaintiff stood was on a line with the outside of the car, but the plaintiff's body projected beyond that line -- he could not press himself closer in. The motorman saw the men and the boy on the step and told them it was dangerous to ride there, and that they ought to try to get on the other side, but they did not change their position. The conductor also saw the plaintiff there, and asked him for his fare while he was in that position, and received it. The plaintiff rode standing on the step outside the gate, from Fourteenth street to a point just beyond Vandeventer avenue, a distance of probably two miles or more, where the accident occurred. In going that distance the car passed around two or three curves and met several cars, east bound on the other track. Just west of Vandeventer avenue the tracks of the defendant companies curve to the north and then turn again to the west. Cars going in opposite directions meeting in this curve were brought more or less nearly in contact according to the point in the curve at which they passed each other. The space between cars thus passing was variously estimated by different witnesses, but the testimony of all of them showed that at some point in the curve the meeting cars would come so close to each other that extra care was to be observed to avoid contact and it was made the subject of special regulation. The printed rules of the companies gave the east-bound cars the right of way in the forenoon and the west-bound in the afternoon. Plaintiff was on a west-bound car and it was about five or six o'clock in the afternoon, so that this car had the right of way. The rules also required the car that did not have the right of way to come to a stop forty feet before entering the curve, to allow a car coming in the opposite direction to pass through the curve without danger of...