79 S.W. 999 (Mo.App. 1904), Aston v. St. Louis Transit Co.

Citation:79 S.W. 999, 105 Mo.App. 226
Opinion Judge:REYBURN, J.
Party Name:ASTON, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
Attorney:Byrns & Bean and Dinning & Hamel for appellant. Seneca N. Taylor and Klein, Schmidt & Reppy for respondent.
Judge Panel:REYBURN, J. Bland, P. J., and Goode, J., concur.
Case Date:March 01, 1904
Court:Court of Appeals of Missouri
 
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Page 999

79 S.W. 999 (Mo.App. 1904)

105 Mo.App. 226

ASTON, Respondent,

v.

ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 1, 1904

Appeal from Jefferson Circuit Court.--Hon. Frank R. Dearing, Judge.

AFFIRMED.

STATEMENT.

On Sunday afternoon, September 28, 1902, Mr. and Mrs. J. W. Aston, accompanied by their three children, started returning from Forest Park; at about five 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 the 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, 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, constructed with sixty pound T rails, the usual rails 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 the fastening in perfect condition, the fastenings were 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 ten miles per hour.

The assignments of negligence, in the complaint on which the 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 twenty-five miles per hour; that the track was in negligent, rough condition, not well ballasted and unfit to operate a car over at even twelve miles per hour; that the gate of the 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 the 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 cause 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.

Judgment affirmed.

Byrns & Bean and Dinning & Hamel for appellant.

(1) The court erred in admitting the opinions of plaintiff's several witnesses as to the rate of speed. Not one of them had ever made any observations as to the rate of speed of cars, and could therefore form no judgment on the subject. Without...

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