Bertram v. People's Ry. Co.

• Decision Date: 01 April 1899
• Citation: 52 S.W. 1119
• Parties: BERTRAM v. PEOPLE'S RY. CO.
• Court: Missouri Supreme Court

52 S.W. 1119

BERTRAM v. PEOPLE'S RY. CO.

Supreme Court of Missouri, Division No. 1.

April 1, 1899.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by James C. Bertram against the People's Railway Company. There was judgment for the plaintiff, and defendant appeals. Transferred to the court in banc.

This is an action for personal injuries received by plaintiff on the 29th of June, 1893, while attempting to board one of defendant's cable cars at the southwest corner of Fourth and Pine streets, in the city of St. Louis. The averment of negligence by the defendant, causing the injury, is thus laid in the petition: "That on or about June 29, 1893, defendant started one of its trains, consisting of a grip car and a trailer car, upon both of which passengers were and are carried by defendant, from said Morgan street along its track on said Fourth street, in a southerly direction, towards said Chouteau avenue; that plaintiff, desiring to become a passenger on defendant's said train, was, on said last-mentioned date, standing at the intersection of the south line of said Pine street with said Fourth street, and on the western side of defendant's said track, upon which said train was being operated towards said Chouteau avenue, the same being the usual and customary place where defendant receives passengers on its south-bound trains; that plaintiff, desiring to become a passenger on defendant's said southbound train, as aforesaid, signaled defendant's agents and servants in charge of said train going south on said Fourth street, and before the said train had reached the said point where plaintiff was standing, to stop said train at said point, in order that he might board the said train as such passenger; that defendant's agents and servants in charge of said train, in response to said signal by plaintiff, slowed up said train, coming nearly to a stop, with the said grip car at a point opposite plaintiff, whereupon plaintiff, as a passenger, upon the invitation of defendant's agents and servants in charge of said train, stepped upon the westward step of said grip car, for the purpose of taking a seat therein as such passenger; that said step on said grip car runs lengthwise of said car, and is provided and maintained by defendant as the proper and only means of ingress and egress to said grip car; that immediately after plaintiff had stepped upon said step, and before he had time and opportunity to take a seat in said grip car as aforesaid, defendant's agents and servants operating said train, without notice or warning to plaintiff, and while he was turning to take a seat in said car, carelessly, negligently, and violently started said train with a sudden and violent lurch, thereby throwing plaintiff's body out somewhat from said car, and thereby causing it to come into violent contact with a wagon standing close up to defendant's said track along which said train was being operated, and on the west side of said Fourth street, and south of the south line of said Pine street. Plaintiff further states that his face was turned from said wagon, and that he did not and could not see it; that said wagon was in full and plain view of defendant's agents and servants in charge of said train, and that they saw said wagon, or by the exercise of reasonable care and diligence might have seen it, before they started such train as aforesaid; that plaintiff, when he stepped upon the step of said grip car, as aforesaid, was in full and plain view of defendant's agents and servants in charge of said train, and that they saw and knew, or by the exercise of reasonable care and diligence could have seen and known, that plaintiff had not and could not have seated himself in said grip car when they started the said train as aforesaid, and that defendant's agents and servants in charge of said train knew, or by the exercise of reasonable care and diligence could have known, that their careless, negligent, and wrongful act in starting said train as aforesaid, while plaintiff was standing on said step, and before he had had an opportunity to seat himself, would bring his body in contact with said wagon; and yet defendant's said agents and servants so in charge of said train carelessly, negligently, and violently started said train, as aforesaid, thereby causing plaintiff's body to come into violent contact with said wagon, all as aforesaid, by reason whereof four of plaintiff's ribs were fractured, and his lungs, shoulders, hips, and body were bruised, crushed, and pressed," etc. The answer of the defendant is a general denial, with a plea that the injuries were the result of unavoidable accident, or were caused by plaintiff's own negligence directly contributing thereto.

Appellant's statement of the evidence adduced at the trial in the circuit court is as follows:

"Plaintiff's evidence: James C. Bertram, the plaintiff, was first called to the stand in his own behalf, and testified that he would be sixty-eight years old in 1897; that on the morning of June 29, 1893, he started out from his home in North St. Louis to visit his daughter, who lived near Lafayette Park; that, after taking a car down town, he went to the southwest corner of Fourth and Pine streets, to take a southbound car of defendant company, which was to take him out to where his daughter lived; that defendant operated two tracks on Fourth street, south-bound cars running along the west track and north-bound cars along the east track; that the new Planters' Hotel had just been erected on the southwest corner of Fourth and Pine streets, and was not yet finished; and that there was a stack of bricks on Fourth street, in front of the hotel, extending from the curb close up to the west rail of the west track of defendant, and north to within a few feet of the crossing, and being about twenty feet high and from fifteen to twenty feet long. Witness further testified that when he had barely gotten to the corner above mentioned one of defendant's trains, consisting of a grip car and trailer, came along, going in a southerly direction, and that he signaled it to stop; that the train stopped, with the rear end of the front (or grip) car opposite to where witness was standing; that the gripman was at the time at his post, in the middle of the grip car, and that the conductor was on the east side of the front platform of the trailer, about seven or eight feet from witness; that witness then got upon the rear end of the running board, — the board running along the side of the grip car, — and caught hold of the upright opposite the last seat, which was occupied by a man whom he afterwards learned to be Mr. H. M. Pollard; that immediately after doing this, and while he was catching hold of the upright in front of Mr. Pollard, with his right hand, with a view to getting into the last seat but one, the cars started up violently, and with a jerk, and witness, having let go his hold of the upright opposite the last seat, and being in the act of stepping into the last seat but one, was struck on the hand by the rear end of a wagon which was standing near defendant's track, south of and concealed by the stack of bricks above referred to, and thrown `all in a heap up against the back of the seat that [he] was getting into,' and against Mr. Pollard; that he was unconscious for a few moments thereafter; that the last thing he remembered before being struck was the conductor's pulling the bell rope to signal the gripman to start; that the next thing he knew he was about to be carried into a drug store; that he begged to be left `in the position he was in,' as he `could not be touched'; that he did not remember any one else's getting on the train on the corner at which be boarded it; that witness, remaining on the grip car at his own request, rode out as far as Castleman avenue, a distance of three or four miles from Fourth and Pine streets; that he got off there, and sat down `in the gutter' until the same cars came back from the terminus of the road; that he does not remember whether any other cars passed him in the meantime; that the train he went out on stopped when it got opposite him, going back, and that he boarded it, and rode back to the corner of Fourth and Pine streets, and that he was assisted onto the car he came from North St. Louis on, and rode back to his home, arriving there about 2 o'clock p. m.; that the accident had occurred at 10 o'clock in the morning; that he was put to bed when he got home, and that in the evening Dr. Lutz was telephoned for, but that Dr. Lutz did not call on him until 2 o'clock p. m. on the day after the accident; that Dr. Lutz had been recommended to him by the conductor of the cars on which the accident happened, because he was defendant company's physician, and would, therefore, be cheaper; that witness remained in bed about two months as a result of the injuries received, and that Dr. Lutz attended him for the first two weeks of that time, calling on him once a day during the first week; that Dr. Lutz found some of witness' ribs fractured, and bandaged him, and that witness expectorated blood, `more or less,' for about six weeks after the accident; that witness consulted three other physicians after Dr. Lutz had ceased calling, making two visits to one of them, — Dr. Garlock; that during the time of his illness witness' wife nursed him. Witness further testified that he found a legal card of Mr. H. M. Pollard in his pocket when he reached home, and that he went to see that gentleman as soon as he was able to get out, and directed him to write to defendant company as his (witness') attorney. In answer to a question as to his occupation, witness then testified that he sold buggy stock at the corner of Fourth street and Chouteau avenue before the accident, and explained that by buggy stock he meant `buggies, carriages, phaetons, and all such things as that,' and on a question by the court he added to this, `horses, harness, and whips.'...