MacDonald v. St. Louis Transit Company and Electric Light and Power Company
| Decision Date | 29 November 1904 |
| Parties | MACDONALD, Respondent, v. ST. LOUIS TRANSIT COMPANY and ELECTRIC LIGHT and POWER COMPANY, Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Robert M. Foster Judge.
This is an action to recover damages for an injury received by the respondent in stepping from a street car of the St. Louis Transit Company. The accident happened near the south crossing of Jefferson avenue at its intersection with Franklin avenue. The hour was about six o'clock, July 29 1903, and while it was still daylight. Respondent got on the car at Thomas street, five blocks north of Franklin avenue intending to transfer to another car at the latter street and stepped from the car she was on for that purpose. It is in dispute whether the car stopped right at the crossing. The contention of the Transit Company is that the evidence shows without contradiction the stop was made at the proper place. The only evidence, if any, to the contrary, is the respondent's statement that the car was a little south of the crossing; but she appears to have noticed this after her fall, and the car might have been moved meanwhile. It had running-boards along its sides. The respondent stepped off at the third seat from the front. She says she took hold of one of the upright stanchions with her right hand, faced east and stepped from the running-board without looking at the ground where her step would take her. Respondent was corpulent and there was some testimony that on account of her weight she was compelled to alight in that manner. She fell into a ditch five feet deep and twenty inches wide, which the Union Electric Light & Power Company had dug along Jefferson avenue parallel to the Transit Company's tracks to lay conduits in. There was some discrepancy in the evidence as to how close this trench was to the Transit Company's west track on which the respondent had been travelling. One witness or more said it was about three feet from the track; but there was other testimony to warrant the inference that it was closer. At any rate, the respondent, according to her statement, fell into it before she observed it. At the crossing of Jefferson avenue south of Franklin, the ditch had not been cut through, but a bridge had been left there four or five feet wide for foot travellers to use. In excavating the ditch an embankment of dirt several feet high had been thrown upon the surface of the street, and of course, both the ditch and the embankment, under ordinary circumstances, would have been within eyesight of the respondent for two blocks before reaching the crossing; but on this day a heavy rain had fallen which flooded the street and filled the ditch so that the latter was concealed, it is said, by the water with which the whole surface of the street was covered.
The action was originally instituted against the St. Louis Transit Company, the Union Electric Light & Power Company, the Seckner Contracting Company and the city of St. Louis, but was dismissed as to the two defendants last named during the trial. The Union Electric Light & Power Company had the ditch excavated and the Secker Contracting Company did the work under contract with the Light & Power Company.
The Union Light & Power Company demurred to the petition on the ground that it contained a misjoinder of causes of action in charging distinct and separate causes of action against the St. Louis Transit Company in inviting respondent to alight in proximity to a dangerous excavation, and a distinct and separate cause of action against the Light & Power Company for negligence in making the excavation and a distinct and separate cause of action against the city of St. Louis for permitting the excavation to remain in the street unguarded. The demurrer was overruled and the Light & Power Company excepted.
The Transit Company filed a general denial and the Seckner Contracting Company and the Light & Power Company filed a joint answer containing a general denial and a plea of contributory negligence on the part of the respondent.
A point is made against the admission of testimony concerning the value of the services of a trained nurse in St. Louis as proof of the value of the services of the respondent's daughter, who nursed her during her suffering, for which the respondent promised to pay.
Judgment reversed and cause remanded.
Boyle, Priest & Lehmann, George W. Easley and Edward T. Miller for appellant Transit Company.
(1) The court erred in overruling appellant's demurrer to plaintiff's evidence, and in refusing its peremptory instruction asked at the close of all the evidence. Young v. Railway, 93 Mo.App. 267; Bascom v. Railroad, 102 Mo.App. 430, 76 S.W. 697; Lynch v. St. Louis Transit Co., 102 Mo.App. 630, 77 S.W. 100; Haley v. St. Louis Transit Co., 179 Mo. 30, 77 S.W. 731; Wells v. Steinway, 18 App.Div. (N.Y.) 180, 45 N.Y.S. 864; Conway v. Railroad, 90 Maine 199, 38 A. 110; Chattanooga Electric Railway v. Boddy (Tenn.), 58 S.W. 647; Foley v. Traction Co. (N. J.), 50 A. 340; Moss v. Railroad, 57 App.Div. (N.Y.) 587, 11 Am. Neg. 568; Lee v. Railroad (Mass.), 13 Am. Neg. 319; Railway v. Friel (Ky.), 39 S.W. 755; Eckerd v. Railway, 70 Iowa 353. This case is distinguishable from steam railroad cases and street railroad cases wherein the carrier owns the right of way upon which its tracks and platforms are located. (2) The third assignment of negligence, viz., "failure to warn plaintiff of the danger of the excavation," was not supported by any evidence, and was withdrawn from the jury by instruction. Again, the petition alleges that the car stopped and plaintiff alighted and stood still, and the evidence shows that the car had started on its way when plaintiff fell. Signar v. Railroad, L. R. 3 Exch. 150; Creamer v. Railway, 156 Mass. 320, 31 N.E. 391. (3) The court erred in giving plaintiff's instruction 1. Aside from the error that defendant should exercise "a very high degree of care in affording plaintiff a safe place to leave said car," the instruction is further erroneous in not submitting to the jury any act of negligence charged. As above stated, three negligent acts were pleaded; first, stopping the car at a dangerous place; second, inviting plaintiff to alight there; third, failure to warn her of the danger. The instruction not only permits a recovery on a single ground not pleaded, but erroneously declares that defendant's duty to plaintiff, after discharging her at a regular stopping place, in obedience to her signal, was to exercise a high degree of care and watchfulness to prevent injury to her even after the car had started away. That plaintiff is confined to the specific acts of negligence pleaded, we cite: Marr v. Bunker, 92 Mo.App. 651; Waldhier v. Railroad, 71 Mo. 514; Paddock v. Somes, 102 Mo. 266, 14 S.W. 746; Raming v. Railway, 157 Mo. 506, 57 S.W. 268. That plaintiff could not claim the high degree of care due a passenger after alighting from the car and "standing still" upon the street, we cite Bigelow v. Railway, 161 Mass. 393, 37 N.E. 368. (4) The court erred in giving plaintiff's instruction 3, whereby plaintiff was permitted to recover for "nursing, care and attention." Plaintiff was attended by her daughter Annie, who was unmarried at the time of the accident and lived with her mother, and also by her daughter-in-law. They were the only nurses plaintiff had, and they attended her continuously ten weeks. Buelterman v. Meyer, 132 Mo. 474, 34 S.W. 67; Ratcliff v. Lumpel, 82 Mo.App. 335; Wood v. Flannery, 89 Mo.App. 632; Doan v. Dale, 90 Mo.App. 87; Voorhies on Dam., p. 29, sec. 18.
Seddon & Holland for appellant, Union Electric Light & Power Company.
(1) The court erred in overruling the demurrer filed by the appellant Union Electric Light & Power Company on the ground that there was a misjoinder of causes of action in plaintiff's petition. R. S. 1899, sec. 593; Doyle v. Transit Co., 77 S.W. 471. (2) The court erred in allowing respondent to introduce in evidence, over the objection of this appellant, section 922 of the municipal code, the ground of appellant's objection being that respondent's own evidence showed that it was impossible on this occasion to observe the provisions of said ordinance. Lore v. American Mfg. Co., 160 Mo. 608, 61 S.W. 678. (3) The court erred in refusing to give the peremptory instruction asked by the Union Electric Light & Power Company at the close of all the evidence. Because the respondent sought to recover against the Union Electric Light & Power Company solely on the ground of the violation of section 922 of the municipal code, and respondent's own evidence showed that it was impossible for said company, on the occasion in question, to observe said ordinance.
James M. Sutherland for respondent.
The record shows the defendant Union Electric Light Company filed a demurrer to plaintiff's petition October 7, 1903, claiming a misjoinder of causes of action. This demurrer was overruled January 20, 1904, and three days later it filed its answer. By pleading over defendant waived all right to raise the question. In this, defendant's motion for a new trial, this point was not given as a ground upon which it sought a new trial. It now comes too late. It cannot be urged in this court for the first time. Franke v. St. Louis, 110 Mo. 516, 19 S.W. 938.
GOODE, J. (after stating the facts).
The error assigned on account of the overruling of the demurrer of the Union Light & Power Company to the petition, as containing a misjoinder of causes of action, would demand serious attention if the ruling was reviewable. The acts of negligence charged against the several appellants were entirely distinct and each charge affected...
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