80 S.W. 323 (Mo.App. 1904), Kreimelmann v. Jourdan

Citation:80 S.W. 323, 107 Mo.App. 64
Opinion Judge:GOODE, J.
Party Name:KREIMELMANN, Respondent, v. JOURDAN, Receiver of the PEOPLE'S RAILWAY COMPANY, Appellant
Attorney:Sears Lehmann, George W. Easley and Boyle, Priest & Lehmann for appellant. A. R. Taylor for respondent.
Judge Panel:GOODE, J. Bland, P. J., and Reyburn, J., concur.
Case Date:April 26, 1904
Court:Court of Appeals of Missouri
 
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Page 323

80 S.W. 323 (Mo.App. 1904)

107 Mo.App. 64

KREIMELMANN, Respondent,

v.

JOURDAN, Receiver of the PEOPLE'S RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 26, 1904

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

Judgment affirmed.

Sears Lehmann, George W. Easley and Boyle, Priest & Lehmann for appellant.

A. R. Taylor for respondent.

GOODE, J. Bland, P. J., and Reyburn, J., concur.

OPINION

[107 Mo.App. 65] GOODE, J.

Plaintiff received very serious injuries, including the loss of a foot, by being struck by one of the trolley cars of The People's Railway Company, then operated by the predecessor of the present receiver. Plaintiff had taken passage at the southeast corner of Ohio street and Lafayette avenue on an open summer car with a continuous step or footboard along each side. He got on the car on the south side, intending to go eastward on Lafayette, as the railway track runs east and west on that avenue from the corner mentioned. Plaintiff was accompanied by his

Page 324

brother and, as they saw no vacant seat on the south side of the car where they entered, they passed around the rear bench to the north side to reach an unoccupied seat. The brother, Charles Kreimelmann, who was in advance, stepped on the north footboard and then to a seat without [107 Mo.App. 66] harm; but the plaintiff had barely reached the board when he was hit by a car west-bound on the north track. The two tracks were near each other at that place; so near that the upright stanchions or grabrails, which projected from the sides of the two cars, were only ten or twelve inches apart as the cars passed, thus making it very hazardous for a passenger to be on an inside footboard. The plaintiff admitted he knew the tracks were close together, but swore he did not know there was danger of a car on the north track colliding with him as he endeavored to get a seat by stepping on the north footboard of the car he was on.

The defendant's position is that the plaintiff should have been denied relief by the trial court, because his own testimony permits no belief or inference except that he voluntarily and knowingly went into a place of danger. This position is founded on plaintiff's statement that he lived in the neighborhood and frequently used the railway line on which he was hurt. As to the plaintiff's testimony conceding, or conclusively establishing, that he knew there was danger of being struck by a passing car if he got on the footboard, we answer that it does neither; for, as said above, he positively denied knowing there was any danger and declared he did not think there was any. How then can it be said he should have been nonsuited on his own testimony? Manifestly he should not have been on the score that he voluntarily and recklessly assumed an obvious risk; for while his statement that he was ignorant of the risk; did not conclude the matter, it made an issue of fact for the jury to determine from all the evidence. That he was familiar with the tracks was to be taken into account in determining whether his declared ignorance of the danger incurred in getting on the footboard, was true. But a man might use street cars running on parallel tracks a long time, and might know the tracks were about the distance apart those in question were, without realizing that it was dangerous to use the runningboard [107 Mo.App. 67] of an open car if that side was left open for use, unless his attention was drawn to the danger by some incident. Men are not apt to make nice calculations about such things, but are rather inclined to trust to the carrier's system and management. The questions of the defendant's negligence and of the plaintiff's contributory negligence were for the jury and not for the court, if it is not the law that a passenger who steps on a footboard, as the plaintiff did and for the like purpose, is absolutely barred from recovering for an injury received while there. The operation of cars of the pattern which caused this accident, with no restraint or guard against the use of the footboards on both sides, and on tracks so close that...

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