Aston v. St. Louis Transit Co.

• Decision Date: 01 March 1904
• Citation: 79 S.W. 999,105 Mo. App. 226
• Parties: ASTON v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

79 S.W. 999

105 Mo. App. 226

ASTON v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

March 1, 1904.

CARRIERS — NEGLIGENCE — PERSONAL INJURIES — INSTRUCTIONS — ISSUES — SPEED OF CAR — OPINION EVIDENCE — RES IPSA LOQUITUR.

1. On an issue as to the speed of a street car, witnesses who were accustomed to railroad travel, many of whom rode daily on street cars, and some of whom traveled frequently on steam railroads also, were competent to give an opinion.

2. Where plaintiff in an action for personal injuries alleges specific acts of negligence, the evidence and right of recovery must be confined to those acts.

3. In an action against a street railway company for injuries alleged to have been caused by negligence of defendant in allowing a gate on the rear platform of one of its cars to remain insecurely fastened, so that it swung open, allowing plaintiff to fall, the court instructed the jury to consider all the circumstances shown by the evidence. This was followed by a charge that the actual issue was that the gate was not securely fastened, and that there was no issue that the gate was not properly made or of a safe kind, or the fastenings not of a safe kind. Held not erroneous as allowing a recovery on negligence not pleaded.

4. In an action against a street railway company for injuries alleged to have been caused by negligence in leaving a gate on the rear platform, through which plaintiff fell, in a condition in which it was liable to open, and in which there was no allegation or proof that the gate broke, the use of the words "giving away," with reference to the gate, in the instructions, was not erroneous, as they did not refer to a fracture, but to disconnection from position as a barrier.

5. Where a gate on the rear platform of a street car swung open while the car was in motion, allowing plaintiff to fall through and injuring her, the happening of the accident created a presumption of negligence on the part of the street car company, casting upon it the burden of showing freedom from negligence.

Appeal from Circuit Court, Jefferson County; Frank R. Dearing, Judge.

Action by Irene Violet Aston against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. S. N. & S. C. Taylor, for respondent.

REYBURN, J.

On Sunday afternoon, September 28, 1902, Mr. and Mrs. J. W. Aston, accompanied by their three children, started returning from Forest Park. At about 5 o'clock they boarded a car of defendant then stationary at Forest Park University. The car within was filled with passengers, and the family were compelled to remain on the rear platform. The father, having paid their fare, stood with the youngest child (an infant) in his arms, and the mother was opposite, with her arm on the shoulder of the eldest child, a daughter then about seven years of age, standing near or against the gate on north side of the platform. The car started eastward, stopped at Forest Park Highlands, where more passengers were taken up, and after proceeding a short distance the gate swung open, and the mother and child were precipitated from the car to the ground and injured. The testimony on behalf of plaintiff tended to show that the gate was not fastened, but the cause of its becoming loose did not clearly appear. By the evidence of numerous witnesses it further appeared that the roadbed of defendant at the place of the casualty was in bad condition, and the car was then being propelled at a high rate of speed. The evidence in defense, on the contrary, demonstrated that the track was in good condition, well ballasted with a combination of cinders, dirt, and macadam, and constructed with 60-pound T rails (the usual rail for such purposes outside of streets); that the gate was one in common use, and had been inspected by the conductor of the car before the trip was begun, and was securely fastened; both the gate and fastening in perfect condition; the fastening was first-class, and could not be opened by mere jolting of the car, but would have to be opened by some one; and the speed of the car was moderate, not exceeding 10 miles per hour. The assignments of negligence in the complaint on which trial was had were that defendant permitted so many persons upon the rear platform as to negligently overcrowd it; that, after the platform was so overcrowded, the car was operated at a careless and negligent speed of about 25 miles per hour; that the track was in negligent, rough condition, not well ballasted, and unfit to operate a car over at even 12 miles per hour; that the gate of rear platform was not securely and safely fastened, but left in negligent condition, liable to swing open and allow plaintiff to be thrown from the platform; that the several acts of defendant thus enumerated together produced a severe jostling of the passengers upon the rear platform, causing them to crush against plaintiff, next to the gate, which gave way, swung open, and plaintiff was thrown from the car while it was moving at such negligent speed. The injuries sustained were then detailed, and judgment asked. These allegations were put in issue by defendant's answer, the case was tried in the circuit court of Jefferson county on change of venue before a jury, a verdict returned for plaintiff, and defendant has appealed.

1. The first point made by appellant is that the trial court erred in admitting the opinions of witnesses introduced by plaintiff as to the rate of speed attained by defendant's car. That the velocity of a car or train in motion, propelled by electric or steam power, does not require to be established by the testimony of experts, is now fixed beyond reasonable...