Behen v. St. Louis Transit Co.

• Citation: 85 S.W. 346,186 Mo. 430
• Parties: BEHEN v. ST. LOUIS TRANSIT CO.
• Decision Date: 22 December 1904
• Court: United States State Supreme Court of Missouri

85 S.W. 346

186 Mo. 430

BEHEN v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

December 22, 1904.

CARRIERS—INJURIES TO PASSENGERS—NEGLIGENCE —REASONABLE TIME TO ALIGHT— PLEADINGS—ELECTION—INCONSISTENT THEORIES —TRIAL—INSTRUCTIONS—REFUSAL OF REQUESTS—APPEAL—ESTOPPEL TO CLAIM ERROR —DEATH—ACTIONS—SURVIVAL.

1. A petition alleging, not in the alternative, two grounds of negligence—the first, that the car was started, after being stopped, without giving a passenger sufficient time to alight; the second, that the conductor allowed the passenger to get off the car while it was in motion,

in violation of an ordinance of the city—was inconsistent in its parts, and a motion to compel an election should have been sustained.

2. In an action for injuries to a passenger on a street car, plaintiff's testimony was to the effect that the car had stopped, and was started before the passenger was given sufficient time to alight. Defendant's testimony was that the passenger attempted to alight before the car had stopped. Held, that plaintiff could not rely on defendant's testimony to make out a case under an ordinance prohibiting conductors to permit passengers to alight from a moving car, as, in order to do so, he would have to repudiate his own testimony, and the allegations of the petition on which such testimony was based.

3. A street car conductor has no right to start his car while he sees or should see a passenger in the act of alighting, although the passenger has already had ample time to alight, and has been unduly slow in so doing.

4. A charge submitting an issue of negligence not raised by the evidence is erroneous.

5. Where a party has unavailingly done all that he can do to prevent the submission of a question to the jury, and the question is submitted under instructions asked by his adversary, the fact that he asks instructions presenting the question in a favorable aspect to himself does not estop him on appeal to assert that the question should not have been submitted at all.

6. In an action for injuries to a passenger on a street car, the only theory on which plaintiff was entitled to recover under her pleadings and evidence was that the car had stopped, and was negligently started while the passenger was attempting to alight. Defendant's testimony was that the passenger attempted to alight from the car while it was moving, in disregard of a warning from the conductor. Defendant requested a charge that plaintiff could not recover if the passenger's injury was caused by her act in stepping from the car while in motion. The court modified the request by adding thereto the words "after being warned by the conductor not to do so." Held that, while the instruction as modified was proper, yet, as there could be no recovery, under defendant's evidence, regardless of the question of warning or no warning, the refusal to give the requests as asked was error.

7. The presentation of two inconsistent theories of plaintiff's case to the jury, on one of which he was entitled to recover, and on the other of which he could not recover without a disregard of all the evidence introduced by him, was reversible error.

8. The right of action given by Rev. St. 1899, § 2864, for death by wrongful act, survives to the administrator of the party in whose favor it accrues.

Appeal from Circuit Court, Lincoln County; E. M. Hughes, Judge.

Action by John T. Behen against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehman. Geo. W. Easley, and Martin & Woolfolk, for appellant. A. R. Taylor, for respondent.

VALLIANT, J.

Plaintiff's mother was a passenger on one of defendant's street cars, and fell while attempting to alight therefrom, and received injuries from which she soon afterwards died. The plaintiff was the only child of deceased, who was his only parent living, and was a minor. The suit was brought in the name of the minor, by his guardian and curator, to recover damages, under the statute, on the ground that the accident was caused by the negligence of defendant. It was begun in the circuit court of the city of St. Louis, and taken by change of venue, on the application of defendant, to Lincoln county, where it was tried, with the result that there was a judgment for the plaintiff for $5,000, from which the defendant appealed. After the appeal was taken, the plaintiff died, and the cause was revived in the name of the administrator of his estate.

There are two acts alleged as negligence on the part of the defendant: First, that, when the car reached the destination of plaintiff's mother, it stopped, in compliance with a signal given by her or some other passenger, to enable her to alight, and that while she was in the act of alighting, before she had a reasonable time to alight, the car was negligently caused to start forward, and she was thereby thrown to the ground, and received the injuries of which she died; second, that at that time there was an ordinance of the city to the effect that conductors of street cars should not allow women or children to enter or leave a car while the same was in motion, but that, in violation of that ordinance, the conductor of this car did allow the plaintiff's mother to leave it while it was in motion, and thereby "directly contributed to cause the injury and death of the plaintiff's mother." The answer was a general denial, and a plea that the plaintiff's mother was guilty of negligence which contributed to the accident, in this: that she negligently attempted to alight from the car while it was yet in motion, and before it had stopped, and got off backwards, and, in doing so, negligently disregarded the warning given her by the conductor not to alight from the car until it stopped. The reply was a general denial.

At the beginning of the trial, defendant moved the court to require the plaintiff to elect upon which of the two alleged acts of negligence he would stand, on the ground that they were inconsistent, and could not both be true. The motion was overruled, and exception taken.

The evidence for the plaintiff tended to prove that the deceased took passage or defendant's car at Forest Park to go east to Grand avenue. It was an evening in June, and it was a summer car, the seats running horizontally across the car; and the means of ingress and egress were running boards, or foot boards, one on each outer side, full length of the car. Finney avenue runs from west to east, having its east terminus at Grand avenue. The course of the car was from the west through Finney into Grand avenue, where the tracks turn south. The usual stopping place to discharge passengers is just after the car passes through the curve into the tangent. When this car was approaching that point a signal was given the conductor to stop, he gave the signal to the motorman, and the car stopped at the usual point. When it stopped, several passengers got off, and, among them, the plaintiff's mother arose and stepped on the running board, in the act to alight, and was doing so; but, before she had a reasonable time to alight, and while she was yet on the running board, the conductor gave the motorman the signal to start, the car started, the movement threw the plaintiff's mother to the ground, and she received injuries from which she died. At the close of the plaintiff's case the defendant asked an instruction in the nature of a demurrer to the evidence, which the court refused, and exception was taken.

On the part of the defendant the testimony tended to prove that the car had not stopped when the deceased attempted to alight, but, while it was slowing down to stop, the deceased arose and stepped down upon the running board, in the act of alighting, her face to the rear, and the conductor saw her, and called to her, saying, "Don't step off there now, lady; wait until the car stops," but she disregarded the warning, stepped off backwards—that is, her back to the front of the car—and, in doing so, fell, and suffered the injuries mentioned.

The giving and refusing of instructions are assigned as error, and they will be noticed hereinafter.

1. The court ought to have sustained the motion of defendant to require the plaintiff to elect which of the two allegations of negligence he would stand upon, viz., first, that the car stopped, and while it was so the deceased stepped on the running board in the act of alighting, when the car was negligently suffered to start, and by that movement she was thrown to the ground; second, that the conductor allowed her to get off while the car was in motion. Those two allegations are inconsistent. If she was attempting to alight while the car was stationary, and was thrown down by its sudden starting, then she was not attempting to alight while the car was moving. Men get on and off the cars while they are going, and the ordinance does not make it the duty of the conductor to attempt to control them in that respect; but it seems to contemplate that women and children are more liable to accidents in attempting such a feat, and that conductors should not allow them to attempt it. Just how much restraint a conductor, under this ordinance, would be authorized to exert in case a grown woman should insist on using her own judgment in such emergency, it is unnecessary now to say. Plaintiff's theory is that, since the conductor gave the signal, and thereby caused the car to move while the woman was in the act of alighting, he thereby allowed her to leave the car while it was in motion, within the meaning of the ordinance, and in that view the two allegations of negligence might both be true. To allow an act to be done is to suffer or permit some one who wants to do it to do so. It is acquiescence in the purpose of another. If a conductor, while his car is in full speed, should, with force and arms, seize a woman and throw her from the car, that would not be his allowing her to alight from a moving car....