Black v. Metropolitan St. Ry. Co.

• Decision Date: 31 March 1909
• Citation: 117 S.W. 1142,217 Mo. 672
• Parties: BLACK v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

117 S.W. 1142

217 Mo. 672

BLACK v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

CARRIERS (§ 321)—PASSENGERS—INJURIES— ACTIONS—INSTRUCTIONS—CONFORMITY TO PLEADINGS.

In an action by a street car passenger for injuries, where the petition alleged that, while plaintiff was attempting to walk from the rear vestibule into the car, he stepped one foot upon the metallic cover of the sand receptacle, and the other foot upon the metallic part of the door sill, and was injured by an electric shock, an instruction to find for plaintiff if he stepped upon said metallic cover and upon the metallic sill, and received from them "or either of them" an electric shock, was erroneous as being broader than the allegations, and authorizing a recovery

if he was shocked by stepping on either the sand cover or the door sill.

Lamm, P. J., and Graves, J., dissenting in part.

Appeal from Circuit Court, Jackson County; James H. Slover, Judge.

Action by William H. Black against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The plaintiff brought this suit against the defendant in the circuit court of Jackson county to recover damages for injuries alleged to have been received by him through the negligence of defendant by a shock caused by an electric current passing through his body while a passenger upon one of defendant's cars. A trial was had and a judgment was rendered in favor of plaintiff for the sum of $8,500. After taking the proper preliminary steps, the defendant duly appealed the cause to this court.

In substance, the petition alleges that on the car in question there was a sand box below the platform of the car, upon which there was a metallic cover, which was set in the floor of the platform so as to become a part thereof. The petition alleges that defendant negligently permitted the electrical apparatus and equipment of the car to become and remain defective, and, in another paragraph, negligently managed and operated the electrical apparatus and equipment "in such manner that the aforesaid metallic cover to said sand receptacle and other metallic parts of the rear end of said car became charged with electricity, and thereby became dangerous and unsafe and liable to injure passengers standing upon or passing over same." Plaintiff alleged his inability to more accurately describe the negligent condition and operation of the car. He then sets out the manner of receiving his alleged injury: "That on the date hereinbefore mentioned while plaintiff was a lawful passenger upon said car, and while said car was at or near the intersection of Nineteenth street with Main street, he attempted to walk from the rear vestibule of said car into the body or inclosed part of said car, and in doing so he stepped one foot upon said metallic cover of said sand receptacle and the other upon the metallic part of the sill of the door connecting the said vestibule with the inclosed part of said car; that immediately he received a powerful electric shock, the electric current passing through his body and injuring him as follows," etc. The answer was a general denial.

The plaintiff was the only witness who described the manner in which he claims to have received the shock; and his testimony in that regard is as follows: "Q. Now, just tell the jury what happened to you, if anything, when you got on that car? A. Well, I stepped on the steps of the platform—that is, the lower step, leading to the platform— and, as I stepped on there, they started the car, and, of course, I caught the door sill, and that brought me around, and I brought my left foot down on this metal plate on the platform. Q. What metal plate is that, Mr. Black? A. That is the sand receptacle, and there is a metal plate on top of it, some four to six inches across the top, to the right of the door as you go in. Q. Suppose you are going in to the door this way now [showing], about how close to the back end of the car is this metal plate? A. I judge about six inches —something like that. Q. And is it on a level with the floor? A. Yes, sir; it makes a part of the floor. Q. When the car started and you swung around on there, what did you have hold of with your hand? A. When I first took hold, I had hold of the hand railing. Q. The metallic hand rail on the back end of the car? A. Yes, sir; then it started and I went to step up. Q. Now, did you have hold of that with your hand at the time your foot stepped on this sand plate? A. I had hold of the door post. Q. Now, what happened to you, if anything, when you stepped on this metal cover? A. I had a sensation that was something continuing and went up my whole body, clear up into my head, and that brought me up into a rigid condition—made me perfectly rigid for a minute. I don't know just how long. Q. What was the sensation? A. Just like driving nails through my flesh. Q. What part of your flesh? A. All over my body and down the legs. Q. How about the state of your muscles? A. It made me perfectly stiff—set the muscles, as if they were firm. Q. What effect did it have on your hands where you had them grasped to the door? A. It set the muscles—brought them around rigid—perfectly tight for an instant. Q. Tell the jury whether this sensation was very painful or not? A. It was; yes, sir; very painful. Q. Now, how did you get off of this box cover? A. With my left foot—that is, the one that I placed on the sand box cover—I went to make a step after I came to I was kind of dazed at the time, and, when I went to raise my foot, it was stuck to this place, and, in order to do that, to get off that plate—in order to move—I had to put my hand like this [showing], and bring my foot up that way off the plate. It popped like clapping hands together when I dragged my foot from the metal to the platform. That was the first I got straightened up from that, and made a step with my right foot to the door sill. It is metal also, and I received another that didn't seem to be so strong as the other one. I didn't feel it so strong. It may have been, but I didn't feel it so strong. Q. What effect did that have upon your hands and muscles, this second shock? A. I don't remember that. Q. Was there any difference between the sensation of the first one and the other except that the second one wasn't quite so severe? A. I don't think there was. Q. Otherwise it was the same kind of sensation? A. Yes, sir. Q. Where was the conductor at the time you got on— the conductor of this car? A. I couldn't tell you what position he was in. He was there at the rear of the car, though. Whether he was in the vestibule or inside the door now I couldn't say. I don't remember now, but he was in the car. Q. There at the end of the car? A. Yes; he was at the rear end of the car. Q. Did he warn you or say anything to you when you started to get on the car to look for this place? A. No, sir; he did not. Q. What kind of a day was it, with reference to whether or not it was thawing? A. It was thawing—a clear day. There had been a heavy snow and the water had run down there and I had to wade through water half a shoe top to get to the car. Q. After you got on there, your feet were wet? A. Yes, sir. Q. You mean just before you got on the street car? A. Yes, sir. Just before I got on the car I stood on the sidewalk until the car came north, coming, and turned and stopped the car, so that I had to wade through this water in order to get on this car. * * * Q. What do you mean by that? A. It put these muscles in a strain so it would keep them from jerking. I could hold them up like that and it kept them from jerking. The same sensation I have to-day, only it isn't so strong now as then. Q. Do you remember of getting a shock on the platform before you put your foot up on the door plate? A. I got it on the platform, on the sand box; yes, sir. Q. That is what I want to understand—before you had stepped up onto the door plate you had gotten the shock? A. Yes, sir. Q. There is a little step up from the platform, a step something like this —four or five inches? A. Yes, sir. Q. There is something of an offset—that is, the platform and vestibule is lower than the front end of the car. A. I think so; yes, sir. As near as my memory serves me I think it is. Q. Now, which foot do you say you stepped onto the sand box cover with? A. My left foot. Q. And where was your right foot at that time? A. I couldn't tell you where it was. It was coming along there somewhere. Q. You feel certain that at the time when you got your left foot on the sand cover that you got a shock, before you got your right foot off of the platform up onto the door sill? A. I know I got a shock before I got onto the door sill with my right foot. Q. You are positive of that? A. Yes, sir; I am positive of that. Q. And you got what you call a very severe shock there? A. Yes, sir. Q. Much more severe as it impressed you than the shock that you got when you put your other foot on the door sill? A. Yes, sir. Q. Was it your right foot you put on the door sill? A. Yes, sir. Q. You do think after you put your right foot on the door sill that you got another shock? A. Yes; I know I did. Q. And then you went on into the car? A. Yes, sir. Q. Now, when was it that you had the trouble in getting your foot loose from the sand cover? Was it before you stepped onto the door sill? A. Yes, sir. Q. While you were wholly in the vestibule—that is the time you had to take hold of your leg with your hands? A. With my one hand. Q. And how did you manage to get loose, did you say? A. I will show you. I went to step— raise this foot up—and it was stuck to this cover. Q. Which foot? A. Left foot. Q. Your left foot was stuck tight to the cover? A. Yes, sir; it was stuck tight, and I put my hand on my knee, like that [showing]. Q. You sort of pried it loose? A. Yes; that is just what I done. Q. How long did it take you to do that? A. That I am unable to...