Aston v. St. Louis Transit Co.

• Citation: 79 S.W. 999,105 Mo.App. 226
• Parties: ASTON, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Decision Date: 01 March 1904
• Court: Court of Appeal of Missouri (US)

79 S.W. 999

105 Mo.App. 226

ASTON, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 1, 1904

Appeal from Jefferson Circuit Court.--Hon. Frank R. Dearing, Judge.

AFFIRMED.

STATEMENT.

On Sunday afternoon, September 28, 1902, Mr. and Mrs. J. W Aston, accompanied by their three children, started returning from Forest Park; at about five o'clock they boarded a car of defendant then stationary at Forest Park University the car within was filled with passengers, and the family were compelled to remain on the rear platform. The father having paid their fare, stood with the youngest child, an infant, in his arms, and the mother was opposite with her arm on the shoulder of the eldest child, a daughter then about seven years of age, standing near or against the gate on the north side of the platform; the car started eastward, stopped at Forest Park Highlands, where more passengers were taken up, and after proceeding a short distance, the gate swung open, the mother and child were precipitated from the car to the ground and injured. The testimony on behalf of plaintiff tended to show that the gate was not fastened but the cause of its becoming loose did not clearly appear; by the evidence of numerous witnesses, it further appeared that the roadbed of defendant, at the place of the casualty, was in bad condition and the car was then being propelled at a high rate of speed. The evidence in defense on the contrary demonstrated that the track was in good condition, well ballasted with a combination of cinders, dirt and macadam constructed with sixty pound T rails, the usual rails for such purposes outside of streets, that the gate was one in common use and had been inspected by the conductor of the car before the trip was begun and was securely fastened, both the gate and the fastening in perfect condition, the fastenings were first class and could not be opened by mere jolting of the car but would have to be opened by some one, and the speed of the car, was moderate, not exceeding ten miles per hour.

The assignments of negligence, in the complaint on which the trial was had, were, that defendant permitted so many persons upon the rear platform as to negligently overcrowd it; that, after the platform was so overcrowded, the car was operated at a careless and negligent speed of about twenty-five miles per hour; that the track was in negligent, rough condition, not well ballasted and unfit to operate a car over at even twelve miles per hour; that the gate of the rear platform was not securely and safely fastened, but left in negligent condition, liable to swing open and allow plaintiff to be thrown from the platform; that the several acts of defendant thus enumerated together produced a severe jostling of the passengers upon the rear platform, causing them to crush against plaintiff next to the gate which gave way, swung open and the plaintiff was thrown from the car while it was moving at such negligent speed; the injuries sustained were then detailed and judgment asked. These allegations were put in issue by defendant's answer, the cause was tried in the circuit court of Jefferson county on change of venue before a jury, a verdict returned for plaintiff and defendant has appealed.

Judgment affirmed.

Byrns & Bean and Dinning & Hamel for appellant.

(1) The court erred in admitting the opinions of plaintiff's several witnesses as to the rate of speed. Not one of them had ever made any observations as to the rate of speed of cars, and could therefore form no judgment on the subject. Without making such observations, they had not the knowledge which entitled them to express an opinion as to the rate of speed. Muth v. Railroad, 87 Mo.App. 434. (2) The court erred in giving each of the instructions for the plaintiff. The plaintiff having alleged specific acts of negligence, those acts alone should have been submitted to the jury, which they must find to have been the proximate cause of the injury. Each of the plaintiff's instructions which goes to the merits of the case directs the jury to find against the defendant upon any cause of negligence, whether alleged or not. The plaintiff having limited her right to recover to the specific acts of negligence alleged, to burden the issues submitted to the jury in the manner set out in plaintiff's first and second instructions was error. Feary v. Railway, 162 Mo. 94; Hite v. Railway, 130 Mo. 136.

Seneca N. Taylor and Klein, Schmidt & Reppy for respondent.

(1) It does not require an expert to testify as to the speed of a car. Anyone accustomed to riding upon cars and seeing them run may testify as to speed. Walsh v. Railroad, 102 Mo. 582; Covel v. Railroad, 82 Mo.App. 186; Railroad v. Steinberg, 17 Mich. 99; Louisville v. Jones, 108 Ind. 551; Pears v. Seattle, 6 Wash. 227; Pence v. Railroad, 42 Am. and Eng. Railroad Cases, 126; Robinson v. Railway, 112 F. 487. (2) A carrier of passengers is required, so far as it is capable by human care and foresight, to carry them safely, and it is responsible for all injuries resulting to its passengers from even the slightest negligence on its part. Higgins v. Railroad, 36 Mo. 428; Lemon v. Chanslor, 68 Mo. 356; Waller v. Railroad, 83 Mo. 615; Leslie v. Railroad, 88 Mo. 55; Furnish v. Railway, 102 Mo. 150; O'Connell v. Railroad, 106 Mo. 482; Clark v. Railroad, 127 Mo. 208; Hight v. Railway, 130 Mo. 139; Powers v. Railway, 60 Mo.App. 482; Parker v. Railway, 69 Mo. 54; Choquette v. Railway, 80 Mo.App. 520; White v. Railroad, 136 Mass. 324; Nagle v. Railroad, 88 Cal. (1891) 86; Railway v. Cook, 145 Ill. (1893) 551. (3) The breaking down or giving way of any portion of the means of transportation of a carrier of passengers for hire whereby an injury happens to a passenger, constitutes a prima facie presumption of negligence on the part of the carrier, which casts upon the carrier the burden of showing to the reasonable satisfaction of the jury that such breaking down or giving way took place notwithstanding the carrier had exercised to prevent the same the utmost care, skill and foresight of a very cautious person engaged in that employment, and notwithstanding that the carrier had not been guilty of even the slightest negligence tending to produce such breaking down, but that it was the result of mere casualty or unavoidable accident. Unless this presumption is rebutted by the carrier to the reasonable satisfaction of the jury, they may regard it as conclusive, but the carrier can rebut it by showing that the accident which produced the injury to the passenger could not have been prevented by the carrier, or its agents or servants by the exercise of the utmost care, skill and foresight of a very cautious person engaged in the same business. Dougherty v. Railroad, 81 Mo. 325; Hipsley v. Railroad, 88 Mo. 352; Clark v. Railway, 130 Mo. 51; Yerkes v. Keokuk Packet Co., 7 Mo.App. 267; Madden v. Railroad, 50 Mo.App. 675; Meyer v. Railroad, 64 Pa. St. 225; Taylor v. Railroad, 84 N.H. 304; Railroad v. Blumenthal, 160 Ill. 40; Railroad v. Jennings, 83 Ill.App. 612; McCaffery v. Railroad, 193 Pa. St. 339; Meador v. Railway, 61 P. 442; Railroad v. Findlay, 76 Ga. 311; Murphy v. Railroad, 89 Ga. 833; Railroad v. Snyder, 117 Ind. 435; Anderson v. Shaley, 114 Ind. 553; Railroad v. Anderson, 72 Md. 526; Gehnor v. Railroad, 101 Mass. 208; Railroad v. Kuhn, 86 Ky. 578; Railroad v. Jones, 83 Ala. 377; Gleason v. Railroad, 140 U.S. 435; Fetter on Carriers of Passengers, p. 1109, chap. 34, sec. 480; Story on Bailments, 601; 2 Shearman & Redfield on Neg. (5 Ed.), 516; Hutchinson on Carriers (1 Ed.), p. 617, sec. 800; Booth on Street Railways, sec. 361.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J. (after stating the facts as above).

1. The first point made by appellant, is that the trial court erred in admitting the opinions of witnesses introduced by plaintiff as to the rate of speed attained by defendant's car. That the velocity of a car or a train in motion, propelled by electric or steam power does not require to be established by the testimony of experts, is now fixed beyond reasonable question. No technical knowledge is essential to form an opinion upon such subject, nor does it involve any scientific question to be answered only by a skilled witness, but it relates to a matter of common observation, and any intelligent person accustomed to notice moving objects, who had opportunity of seeing a car or train, would be enabled to form some opinion; the experience and capacity of the testifying witness and the consequent reliability and value of his testimony would affect the weight but not the competency and admissibility of the evidence. Walsh v. Railway, 102 Mo. 582; Covell v. Railway, 82 Mo.App. 180; Lehigh, etc., Co. v. Rainey, 112 F. 485; Detroit, etc., Co. v. Van Steinburg, 17 Mich. 99; Louisville, etc., Railway v. Jones, 108 Ind. 551, 9 N.E. 476. The witnesses, who testified to the rate of motion of this car, were accustomed to railroad travel, many rode daily on street cars, and some of them had travelled frequently on steam railroads also, and were undoubtedly...