Allen v. St. Louis Transit Co.

• Decision Date: 20 June 1904
• Citation: 183 Mo. 411,81 S.W. 1142
• Parties: ALLEN v. ST. LOUIS TRANSIT CO. et al.
• Court: Missouri Supreme Court

81 S.W. 1142

183 Mo. 411

ALLEN v. ST. LOUIS TRANSIT CO. et al.

Supreme Court of Missouri, Division No. 1.

June 20, 1904.

CARRIERS — INJURY TO PASSENGER — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — JURY QUESTIONS — INSTRUCTIONS — EVIDENCE — ADMISSIBILITY — SUFFICIENCY — APPEAL AND ERROR.

1. In an action against a street railroad for injuries to a passenger, received while attempting to get a seat in a car by way of a footboard, next to a car line on which cars ran in the opposite direction, one of which struck plaintiff, defendant filed a plea of contributory negligence, asserting that plaintiff unnecessarily went on the side of the car on which he was injured, that he failed to look or listen for an approaching car, and that he leaned out, when by standing erect he could have avoided injury. Held, that the answer meant no more than that the plaintiff did not use the appliances provided by defendant with ordinary care, and hence a contention that the plea assumed that the arrangement or plan of the car was a dangerous contrivance, admitting defendant's negligence in putting it into service, was untenable.

2. In an action against a street railroad for injuries to a passenger while attempting to take a seat in a car by way of the inner footboard, next to a car line on which cars ran in the opposite direction, one of which struck plaintiff, causing his injuries, evidence examined, and whether plaintiff was guilty of contributory negligence or defendant of negligence held to be questions for the jury.

3. In an action against a street railroad for injuries, the petition merely charged that plaintiff was a passenger and received the injuries, but did not refer the accident to any failure of defendant to furnish either a safe track, roadbed, car, or access to the seats in the car. The instructions requested and given for defendant took up and practically withdrew from the consideration of the jury every phase of the case on which negligence could be predicated. Held, that instructions requested and given for plaintiff, which were indefinite in a similar respect to the petition, were erroneous, as failing to define the issues the jury were to try.

4. In an action against a street railroad for injuries to a passenger, received while attempting to take a seat in a car by way of an inner footboard, next to a car line on which cars ran in the opposite direction, plaintiff's instructions, which were given, told the jury that if they found that plaintiff, in going along the board, was exercising such care as ordinarily prudent men would exercise under similar circumstances, and that while so doing he was struck from the car by a car on the other track, then he was entitled to recover. Another instruction stated that, though the defendant failed to observe the high degree of care devolving upon it, that fact did not absolve the passenger from the duty of exercising the care devolving upon him. Held, that the giving of such instructions did not cure the error of refusing to give instructions for defendant to the effect that, when plaintiff stepped on the board, it became his duty to exercise such a degree of care as the position he was in rendered reasonably necessary to prevent his being struck by a passing car, and that if by standing upright, and not leaning out, he would have avoided being struck, yet failed to observe that care, he was not entitled to recover; there being evidence tending to show that plaintiff would not have been struck if he had stood erect on the footboard and not leaned outward.

5. Where a street railroad, operating cars on parallel tracks, uses cars equipped with footboards on both sides for gaining access to the seats, there is no duty devolving on the company to post notices warning passengers to keep off the inner board, and its omission to do so is neither negligence nor evidence of negligence.

6. In an action against a street railroad for injury to a passenger, received while attempting to get a seat in a car by way of an inner footboard, next to a car line on which cars ran in the opposite direction, where the jury saw the plaintiff, and there was evidence showing the plan of the car and dimensions and distances between the tracks and cars on the tracks, expert testimony on the question whether it was safe for a person to stand on the board was not admissible.

7. In an action against a street railroad for injuries to a passenger, received while attempting to get a seat in a car by way of the inner footboard, next to a car line on which cars ran in the opposite direction, one of which struck plaintiff, causing his injuries, reports to an officer of defendant of other accidents to persons riding on the inner footboard, previous to plaintiff's accident, are hearsay.

Appeal from St. Louis Circuit Court; Wm. Zachritz, Judge.

Action by Clifford B. Allen against the St. Louis Transit Company and another. From a judgment for plaintiff, defendants appeal. Reversed.

Boyle, Priest & Kehmann and Geo. W. Easley, for appellants. Finkelnburg, Nagel & Kirby and E. I. Allen, for respondent.

VALLIANT, J.

On October 9, 1900, the defendants were operating a double-track street railroad in Lafayette avenue, in St. Louis, lying east and west. At that date defendants' cars were drawn by cable power. Its trains were composed of what was called a "grip car," and a closed car, called a "trailer." The grip car was open at the sides, the seats arranged crosswise, with a closed aisle in the middle for the gripman to occupy, and the roof supported by stanchions on both sides at the outer ends of the seats. The seats were reached by the passengers by a board running lengthwise along each side of the car, forming a step and called a "running board" or "footboard." There was a front and a back platform. The gripman stood near the center of the car in the closed aisle. The only way for a passenger to go from one side of the car to a seat on the other was across the front or the rear platform, thence along the running board to the seat desired. The two tracks lay parallel, with a space about four feet in width between them. The south track was for the east-bound trains; the north track, for the trains west bound. On the day above named the plaintiff boarded the grip car of an eastbound train, to be carried down town to his place of business. He got on the running board on the south side of the car. Seeing a vacant seat on the other side which he desired to take, he walked along the running board to the front platform, crossed the platform, and, taking hold of a stanchion with his left hand and of a handhold on the dashboard with his right, stepped down on the running board on the north side, then, letting go the hold of his right hand, turned his body to the west, aiming to catch the next stanchion with that hand. He was while in that act struck by a west-bound car, knocked off, and received very severe injuries. This suit is to recover damages for those injuries.

The petition alleges in general terms that the accident was "caused by the negligence, carelessness, and recklessness of defendants and their officers, agents, servants, and employés." The answer was a general denial and a plea of contributory negligence. The acts specified as negligence on the part of the plaintiff are: (1) "Unnecessarily going upon the inner running board or footboard on the car, when he might have taken a seat on the side of the car on which he first entered, and thereby avoided all chance of injury." (2) "In going upon the inner running or footboard of the car at a time and place where a car was likely to pass on the other track, without either looking or listening to see or hear whether another car was likely to pass on said other track, or not, while he was on said inner running or foot board, when by looking or listening he might have seen and heard the said car upon said other track, and remained off said running board until said other car had passed, and thereby have avoided being struck by said passing car." (3) "In leaning outwardly from the car upon the foot or running board on which he was standing, so far as to come in contact with the passing car, when, had he exercised a reasonable care for his own safety, and stood perpendicularly upon the running or foot board upon which he was standing, said passing car would not have struck him; and that the collision between the passing car and the plaintiff was caused by his leaning outwardly in the direction of the passing car." The reply was a general denial.

The trial resulted in a verdict for the plaintiff for $15,000, and judgment accordingly, from which the defendants appeal. The assignments of error relate to the rulings of the court on the introduction of evidence and to the instructions given and refused. So much of the evidence as is necessary to an understanding of these assignments will be referred to hereinafter, as will be also the instructions.

1. In the brief for respondent it is contended that the statements in the answer amount to a confession of the plaintiff's right to recover, and that the only question left open is as to the amount of damages. The idea advanced is that the statements in the plea of contributory negligence assume that the arrangement or plan of the car was a dangerous contrivance, and therefore the defendants were guilty of negligence in putting it into public service. It would seem, on reason, that any plea of contributory negligence must be a plea of confession and avoidance. If the facts stated in the plea only go to show that it was the plaintiff's own negligence, and nothing more, that caused the accident, those facts could be proven under the general denial, because, if it was the plaintiff's negligence only, it was in no part defendant's negligence. Under a general denial the defendant may prove any fact which shows that the plaintiff never had any cause of action. But, where an affirmative defense is offered, it logically carries...