Kreimelmann v. Jourdan
| Decision Date | 26 April 1904 |
| Citation | 80 S.W. 323,107 Mo.App. 64 |
| Parties | KREIMELMANN, Respondent, v. JOURDAN, Receiver of the PEOPLE'S RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
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.
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 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 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 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 passengers are in peril of a collision when using the inside footboard, can not be regarded as other than inconsiderate management. If it desired to operate such cars on such tracks, the company should have taken some precaution to prevent passengers from using the inside footboard; and leaving that side as accessible as the other, was an invitation to step on the footboard when it was necessary to do so in boarding or alighting from a car, or to find a seat. Situations in which it would be a negligent act for a passenger to get on the step or footboard of a moving car can be called to mind; but the facts disclosed in the present case are far from rendering it certain that the plaintiff was negligent. According to his testimony, and there is very little, if any, evidence to refute it, he was in no sense negligent when he stepped where he was hurt; for he stepped there in an endeavor to reach a seat and was moving cautiously. That such an act is not always a negligent one has been frequently held; and, by the principle of the decision in Hueselkamp v. Railway Co., 34 Mo. 45, Id., 37 Mo. 537, may be said to have been held in this state. In that case the plaintiff's husband got on a car at the fair grounds, in the city of St. Louis, to ride home. The car was crowded and he was compelled to stand on a step and hold by the guard rails, with his body leaning outside the line of the car. In consequence of his position he was struck by another car standing on a turn-out, and killed. While the judgment was reversed on the first appeal for an erroneous instruction, there was no suggestion that the case ought to have been withdrawn from the jury; and, in truth, it was remanded for retrial. That an accident of the kind that befall Kreimelmann presents a case for the jury on the question of contributory negligence of the party injured, was decided in City R. R. Co. v. Lee, 50 N.J.L. 435, 14 A. 883; Chicago Ry. Co. v. Rood, 62 Ill.App. 550; Citizens Railway v. Hoffbauer, 23 Ind.App. 614, 56 N.E. 54; Cogswell v. Ry. Co., 5 Wash. 46, 31 P. 411; Topeka Ry. v. Higgs, 38 Kan. 375, 16 P. 667; Elliott v. Ry., 18 R.I. 707. Textwriters declare the rule the same way. Nellis, Street Railways, p. 472.
The instructions given by the trial court advised the jury they must find Kreimelmann was observing ordinary care when hurt. In reference to the negligence of the railway company, the case was referred to the jury only on the issue of whether the tracks and the cars in use were so constructed that a passenger was likely to be struck by a passing car while going carefully along an inside footboard to a seat. The instruction granted at plaintiff's request was that, if, while he was getting to a seat on the footboard, he was struck and injured because the defendant's tracks and cars were so constructed as to leave insufficient space between the cars, he was entitled to recover, provided he was exercising ordinary care at the time. For the defendant the court advised the jury that the railway company was not bound to construct its tracks so as to make it impossible for persons riding on cars to be injured as plaintiff was, but only to construct them so that passengers using prudence and care would not be injured. As an abstract statement of the law that was correct (Craighead v. Railway, 123 N.Y. 391); but the court went further and applied the law to the proof by telling the jury that if they found there was sufficient space between the tracks and the cars to enable a passenger to stand in safety on a footboard and to avoid collision with a passing car by using reasonable caution, the servants of the company had the right to assume a passenger would exercise such care; and that it was not negligent, under those conditions, for cars to pass each other when a passenger was on an inside footboard. The jury were further instructed that if the plaintiff knew of the close proximity of the tracks and that cars were passing, it was his duty, when he went on the footboard in search of a seat, to prevent his body from swinging out from the car, and if he could have passed to a seat without being hurt by using ordinary care, the verdict should be for the defendant. Those charges were sound and informed the jury what the law of the case was.
The proposition is greatly insisted on that the court erred in refusing to instruct that the plaintiff could not recover if he stepped on the footboard without first looking for a car on the north track. The rule that a person must look or listen before going on a given spot, or forfeit any relief for an injury received thereon, prevails when the spot is known to be in the track or course habitually passed over by trains, cars, wagons, and other instrumentalities whose impact will inflict injury. We are not sure a jury may be told a plaintiff can not recover for a personal injury if he did not look around before going...
To continue reading
Request your trial