Cramer v. Springfield Traction Co.

• Citation: 87 S.W. 24,112 Mo.App. 350
• Parties: CRAMER, Respondent, v. SPRINGFIELD TRACTION COMPANY, Appellant
• Decision Date: 02 May 1905
• Court: Court of Appeal of Missouri (US)

87 S.W. 24

112 Mo.App. 350

CRAMER, Respondent, v. SPRINGFIELD TRACTION COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

May 2, 1905

[Copyrighted Material Omitted]

Appeal from Greene Circuit Court.--Hon. James T. Neville, Judge.

REVERSED AND REMANDED.

STATEMENT.

After alleging that defendant is a corporation and owns and operates a system of street railways in the city of Springfield, Missouri, the petition states:

"That on the twenty-second day of March, 1902, at the intersection of Center street and Benton avenue, in said city, this plaintiff boarded one of defendant's said cars, and became a passenger on same, paying her necessary fare and remained on said car until she reached the intersection of Commercial street and Benton avenue, at which place she requested the motorman, who was in charge of the car, to furnish her with a transfer ticket over the Springfield avenue line, the corner of Benton avenue and Commercial street being the junction for the Springfield avenue line that in compliance with her request the said motorman did furnish her with a transfer ticket for said Springfield avenue car, and that she at once proceeded to get off of said car, and in doing so walked from where the motorman was standing in the front end of same to the rear, and that as she was just alighting from said car, the motorman negligently, carelessly and willfully turned the current of electricity, thereby causing said car to jerk instantly and start at a rapid rate of speed. Said jerk was so sudden that it caused plaintiff to fall from the step of said car on to the brick pavement, injuring her as follows: Dislocating her right shoulder and breaking her shoulder cap, and on account of said injury she has suffered intense pain from said time until the present, and that said injuries are permanent. Plaintiff says that by reason of the injuries as aforesaid caused by the negligence and carelessness of the servant or employee of the defendant she has been damaged in the sum of $ 5,000, for which she asks judgment."

The petition was not demurred to nor was a motion filed to make it more definite or specific or to strike out any part of it without taking any exception to the petition, defendant filed its answer, containing a general denial and a plea of contributory negligence.

Plaintiff's evidence tends to show that on March 22, 1902, she boarded a Benton avenue car and rode to the intersection of Benton avenue and Commercial street, where the car was stopped opposite Reed's drugstore and just past the foot crossing over Commercial street.

Plaintiff testified that when the car stopped at Commercial street, she walked to the front platform and held up her nickel and the motorman made a motion to her to drop it in the box which she did and then asked for a transfer for the Springfield avenue line. Plaintiff stated: "He was writing when I asked for the transfer, and he didn't pay any attention just then. He waited until he was done writing, and he said to me 'What did you say?' I says, 'I want a transfer to Springfield avenue,' and he gave me a transfer, and I turned right around and picked up a little bundle that I had, and I just touched my limb on the seat, and I went back that way, and I made a spring and I came right up, and I walked out as straight as I could go, and it didn't exceed one minute from the time I left the motorman until I was on the street with a broken shoulder." Plaintiff also testified that she had the transfer ticket and a bundle in her right hand and had hold of the hand rail with the left, with one foot on the lower step, and was in the act of reaching the other to the ground, when the car was suddenly started, throwing her off. Plaintiff further testified that she was sixty-seven years old and was in good health when she was injured, but had "busted veins" in one of her lower limbs and when riding on a car she had weakness in her limbs and could not walk in a car while it was in motion, but that the weakness disappeared as soon as she was up and off the car. Plaintiff said that she did not hear the gong of the car sounded. Plaintiff's evidence and that of her attending physicians shows that her right arm was broken at or near the shoulder, that she suffered a great deal of pain and that her injury is a permanent one.

The Springfield avenue line runs over Commercial street at the junction of Benton avenue and Commercial street and for several blocks east, and passengers with transfers from the car on which plaintiff was traveling could board a Springfield avenue car at the junction or at several other places east thereof on Commercial street. The plaintiff did not notify the motorman that she wanted to get off at the junction to take a Springfield avenue car and there is no evidence to show that the motorman knew that she intended to get off at said point, and nothing in the evidence from which notice may be inferred, unless it can be inferred from the fact that plaintiff procured the transfer ticket at the junction and that passengers get on and off the cars at that point. The cars of defendant are run without conductors. Fares are paid by the passengers dropping their nickels in a box put up in the car for that purpose. The evidence shows that a mirror is so placed on the front platform as to enable the motorman by looking into it to see the inside of his car from one end to the other. The motorman in charge of the car testified that he looked back around the car to see if anyone was getting on or off and seeing no one, sounded the gong and then started his car. He did not remember seeing the plaintiff on the day of the accident on or off the car, or giving her a transfer, and did not know that she was hurt until about three hours after the accident. Plaintiff testified that when she got on the platform, she saw a car coming up which she thought might be a Springfield avenue car, and there is ground for the inference that she was in a hurry to get off to catch that car, but she denied that the sight of the car caused her to hurry or caused her any anxiety.

George Franks, a motorman on another car, testified that he came up with his car, behind the one plaintiff was on and within ten feet of it, and stopped and saw the accident, in regard to which he testified as follows:

"Q. Just tell the jury what you saw and how it occurred? A. The first I saw of it the lady stepped up to the front end of the car and was talking to the motorman. I don't know whether she had asked him for the transfer or not, but she turned around and walked back about middle ways of the car and sat down.

"Q. What was that car doing that she was on at that time? A. Standing still.

"Q. What were you doing? A. I was standing still.

"Q. On the opposite side of the street? A. No, sir; right behind him, waiting for him to get out of my way.

"Q. How far behind him? A. Not ten feet.

"Q. You say you saw her get a transfer and go back and sit down? A. I don't know whether she got a transfer or not. She stepped to the front end of the car and talked to him.

"Q. And then came back and sat down? A. And then came back and sat down.

"Q. On which side of the car? A. On the north side.

"Q. Then what happened? A. He rang his gong and started.

"Q. Did you hear him ring the gong? A. Yes, sir, I did. He started his car and she got up and stepped off.

"Q. She got up from her seat? A. Yes, sir, after he started the car.

"Q. And she went to the rear and stepped off the car? A. Yes, sir.

"Q. Was the car in motion when she stepped off? A. Yes, sir.

"Q. Did she fall when she stepped off? A. I think she did.

"Q. Did you see her fall? A. I saw her fall.

"Q. About what point did she fall in reference to the buildings here? Do you know where Hulse & Nibler now are? A. It was between 'Our Folks' store and Hulse & Nibler's there, between the two. I couldn't say just exactly the place.

"Q. What happened then? A. I had started my car at the time, and when she fell I stopped my car as quick as I could and went to help pick her up.

"Q. Who assisted you? A. Mr. Stephenson and Mr. Campbell.

"Q. Where did you take her first? A. Took her to the stairway there.

"Q. Then where did you take her? A. While I went to telephone to the office, and they took her into the restaurant."

Stephenson and Campbell both testified that plaintiff got off the car while it was in motion, and both testified that Stephenson, seeing that she was going to step off and fearing she would fall, hallooed to the plaintiff and started to run toward her. These three witnesses and four or five others, called by the defendant, testified that plaintiff fell off the car about sixty-five feet east of Reed's drug store, which was opposite the place where the car was stopped, at the junction of Benton avenue and Commercial street.

At the close of all the evidence, defendant moved the court to instruct that under the law and the evidence the plaintiff was not entitled to recover. The court refused this instruction and of its own motion instructed the jury as follows on behalf of the plaintiff:

"The uncontradicted evidence shows that plaintiff was a passenger on the defendant's car. It was the duty of defendant to use the greatest care to see that she safely alighted from the car and to use every reasonable means in its power to avoid injuring her. If the car was standing still and plaintiff was approaching the rear of said car or about to get off of same, then before starting the car it was the duty of the motorman to observe her conduct and remain still till she had safely reached the ground. And if you find from the evidence that he started the car while she was in the act of alighting therefrom, and that she fell by reason thereof, you will find the issues in favor of the...