Bischoff v. People's Ry. Co.

• Citation: 25 S.W. 908,121 Mo. 216
• Parties: BISCHOFF v. PEOPLE'S RY. CO.
• Decision Date: 24 March 1894
• Court: United States State Supreme Court of Missouri

25 S.W. 908

121 Mo. 216

BISCHOFF v. PEOPLE'S RY. CO.

Supreme Court of Missouri, Division No. 1.

March 24, 1894.

INJURY TO PASSENGER ON STREET RAILWAY — JUMPING FROM CAR — GRADE CROSSING.

1. In an action against a street-railway company for personal injuries, where plaintiff's evidence

showed that she was injured by jumping from a cable car of defendant, upon which she was a passenger, and which was approaching a railroad grade crossing, because the gripman, after being repeatedly warned of the near approach of a train, not only failed to stop his car, although he could easily have done so, but increased its speed to make the crossing before the train, a motion for a nonsuit was properly denied.

2. In an action against a street-railway company for personal injuries, an instruction that defendant was bound to use towards plaintiff, if a passenger, the high degree of care that would be used by very prudent persons under like circumstances, and defendant was liable for even the slightest neglect to use such care, is proper.

Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Action by Louise Bischoff against the People's Railway Company for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

G. A. Finkelnburg, for appellant. J. W. Benstein, W. E. Jones, and A. R. Taylor, for respondent.

BRACE, J.

This is an action for damages for personal injuries, in which plaintiff obtained a judgment in the St. Louis circuit court for $3,000, and the defendant appeals, and assigns for error the refusal of the court to sustain a demurrer to plaintiff's evidence, its refusal to give an instruction to find for the defendant at the close of all the evidence, the giving of instruction No. 1 for the plaintiff, and in not setting aside the verdict because the jury disregarded instructions Nos. 2 and 3 given for the defendant. Instruction No. 1 given for the plaintiff is as follows: "(1) The court instructs the jury that, if the defendant by its servants in charge of its cars received the plaintiff as a passenger on said cars, then defendant was bound, by its servants in charge of its cars, to exercise a high degree of care, such as would be exercised by very prudent persons under like circumstances, to carry plaintiff safely to her point of destination on defendant's line of railway; and defendant is liable for even the slightest neglect of defendant's servants, if there was such neglect, to use such care, if such neglect caused plaintiff's injury, and if plaintiff exercised ordinary care at the time of the injury." Instructions Nos. 2 and 3 given for the defendant are as follows: "(2) If the jury find from the evidence that for years prior to this accident it had been customary, and that at the time of the accident it still was the custom of the Missouri Pacific Railway Company, its agents and employes, to give warning of the approach of its trains to persons and vehicles about to cross its track at the intersection of Fourth and Poplar streets, and to give such warning by lowering its movable gates or barriers across Fourth street in time to prevent danger of collision; and if the jury further find that this custom was known to defendant's agents and employés, as well as to the plaintiff, and to the public generally, — then the defendant's agents and servants are not to be charged with negligence from the mere fact (if the jury find such to be the fact) that they assumed the way to be clear and free from danger until such movable gates or barriers were lowered. (3) If the jury believe from the evidence that plaintiff jumped off the car from fear of impending danger, and if the jury further find that such fear was caused by the negligence or improper conduct of the watchman of the Missouri Pacific Railway Company, and not by the negligence or improper conduct of the driver or conductor of the People's Railway Company, the plaintiff cannot recover against said People's Railway Company."

The undisputed facts are that at the time the accident happened the defendant was operating a line of cable cars, running north and south on Fourth street, and the Missouri Pacific Railway Company was operating a steam railway along a track running east and west on Poplar street in said city. That at the intersection of these two streets, for the protection of the traveling public, the railway company maintained a movable barrier, consisting of two long poles, on the east side of Fourth street, one on the north and one on the south side of its track. These poles stood upright when the railroad track was clear, and were lowered westwardly to a horizontal position across Fourth street when an engine or train was about to cross. They were managed by a watchman or gate keeper in the employ of the railway company, and under its sole control. At night a red light is attached to the ends of the poles, which moved up and down with them. The accident occurred about half past 10 o'clock on the night of the 16th of May, 1890. The plaintiff's injuries were serious and permanent. At the time an engine with headlight in front was approaching the crossing on the railway track on Poplar street the plaintiff was a passenger on defendant's cable cars, going south on Fourth street, and approaching the crossing. Owing to the buildings, the approaching engine could not be seen from the cable cars. She gives the following account, in substance, of the occurrence: "When the cable cars were approaching Poplar street, persons began to motion, and cries came for the gripman to stop; that a train was coming. Several other cries came, but I did not see the men; but I seen a policeman wave, and I...