Brewer v. St. Louis Transit Company

• Decision Date: 15 March 1904
• Citation: 79 S.W. 1021,105 Mo.App. 503
• Parties: BREWER, Appellant, v. ST. LOUIS TRANSIT COMPANY, Respondent
• Court: Missouri Court of Appeals

79 S.W. 1021

105 Mo.App. 503

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

Court of Appeals of Missouri, St. Louis

March 15, 1904

Appeal from St. Louis City Circuit Court.--Hon. Robt. M. Foster Judge.

AFFIRMED.

STATEMENT.

The suit is to recover damages for personal injuries alleged to have been caused by the negligence of defendant's motorman in charge of a street car upon which plaintiff was a passenger, riding on the front platform on account of the crowded condition of the car. The particular negligence charged is that "the mortorman in the employ of the defendant, and in charge of and operating said car negligently, recklessly and carelessly caused the brake handle on the front end of said car to strike the plaintiff on his left arm, with great force and violence, thereby greatly and permanently injuring plaintiff on his said arm and also causing serious and permanent injuries to plaintiff's nervous system."

The answer was a general denial and a plea of contributory negligence.

Plaintiff testified that he was on the front platform and that it was crowded with passengers; that after going eight or ten blocks the man to his right, standing in the corner of the platform got off and plaintiff was forced into the corner this other man had left. To brace himself he took hold of the screen of the car with his left hand and was looking toward his right over the screen; when the signal to go ahead was given he glanced forward and at that time noticed the right arm of the motorman fly up and at the same time the handle of the brake struck him on the left arm just above the elbow joint. Witness had been standing in that position before being struck for about twenty or thirty seconds--while passengers were getting on or off the car.

H. R Whipple, a witness for the plaintiff, testified that he had formerly been a motorman. For five years and a half he had operated a brake like the one described in defendant's answer. Witness testified that with a crowded car such as had been described, the brake wound up, the car stopped, that it would be customary to let the brake off easily and to hang on to the brake handle. Witness said one could give the brake handle a jerk and throw up your hand and let it unwind itself; that by hanging on to the brake handle it would not be possible to injure anyone. Witness said that when he was a motorman he had often been so crowded that he had to push people away from the brake handle before letting it off.

For the defendant, the motorman in charge of the car testified that just as the signal to start was given, the plaintiff stepped forward between the brake and the screen and looked around to see if the passengers were getting on, and as he stepped forward the brake handle caught him on the arm. Witness let the brake handle loose one turn and then let it fly, that when he let it loose there was no one in the way, each man was standing back. Plaintiff had his right hand on the screen and his left hand in his coat pocket. Witness stated that with a man standing behind the brake with his back to the car, the brake would have a distance of two or three feet in which to revolve without touching anyone. Witness had seen two or three persons at once in this corner without being struck. He was not crowded that morning.

M. T Clark, a passenger on the platform, testified that he was a passenger on the front platform of the car in question. He was standing next to plaintiff on his left. When the car stopped he noticed plaintiff looking out as if to see the cause of the delay, and while looking out the signal to go was given and the car went on and plaintiff turned around and came in contact with the brake handle. Witness did not notice plaintiff particularly. He was next to plaintiff and as plaintiff turned around the only thing witness knew was that plaintiff was holding his arm and had been struck with the brake. Witness thinks the brake lever was in motion when plaintiff turned around.

Robert Phillips testified that there were only three persons on the platform at the time plaintiff was injured.

A blue print plat of the platform was exhibited in evidence. It showed the platform to be six feet, six inches long across the front end of the car. It showed the front of the platform curved, the width in the center forty-seven and three-fourths inches and at the edges on each side thirty-seven inches. The brake staff was shown to be set in the platform from the right hand edge a distance of nineteen inches, and from the dash-board, or front edge of the platform, a distance of twelve inches. The brake handle on the end of the brake staff was shown by the plat to be fourteen inches long, describing a circle of twenty-eight inches. The position of the controller box, back of which the motorman stands, was indicated to the left of the brake staff. The plat was drawn on a scale of one and one-half inches to the foot.

Plaintiff asked the witness who made the measurements and the plat of the platform, to make a drawing of the exact size of the platform on the floor in front of the jury. On an objection made by defendant the court stated: "The question is whether or not the jury can get a fair idea of the size and measure of the platform. They have the blue print, and if they want any other measurement put on them you can ascertain what they are. Of course you can ask him anything about the blue print you see fit." And refused the request of the plaintiff, to which he objected and excepted at the time.

The court gave the following instructions for plaintiff:

"1. If the jury believe and find from the evidence the following facts, to-wit, that on or about the second day of January, 1903, plaintiff was a passenger on one of the defendant's east bound Spring avenue cars; that the plaintiff, in the exercise of ordinary care, was riding on the front platform of said car and that when said car reached the intersection of Twentieth street and Biddle street, in the city of St. Louis, the motorman in the employ of the defendant and operating said car, negligently caused the brake handle on the front end of said car to strike plaintiff on his left arm with great force and violence, thereby causing the injuries to plaintiff complained of, then your verdict should be for the plaintiff, provided the plaintiff himself was, at the time, exercising that care which an ordinarily prudent person would have exercised to avoid being injured.

"2. The court instructs the jury that if they believe and find from the evidence that the plaintiff was a passenger on defendant's car as alleged in the petition, then in that event the defendant owed to the plaintiff, while plaintiff was a passenger on said car, the duty of managing and operating its said car, with the highest degree of care of a very prudent person in view of all the facts and circumstances at the time of the alleged injury, and the defendant is liable to the plaintiff for any omission of such care, if such omission resulted in injury to the plaintiff, and if the plaintiff was at the time of the injury acting with ordinary care to avoid being injured, and if from the evidence in this case the jury believe that the plaintiff, while a passenger on the defendant's car, received an injury resulting from the negligence of the defendant, or its servant, as set forth in instruction No. 1, then your verdict should be for the plaintiff.

"3. The court instructs the jury that with respect to the charge of contributory negligence on the part of the plaintiff, the burden of proof is on the defendant, and unless the defendant proves to their satisfaction by a preponderance of the evidence that plaintiff was negligent and that such negligence and not the negligence of the defendant was the proximate cause of the injury, they should not find him guilty of contributory negligence."

And gave the following for defendant:

"1. It was not the duty of defendant's motorman to anticipate that plaintiff would put his arm within the radius of the brake handle. On the other hand, it was the duty of the plaintiff to anticipate that the brake handle would swing around with violence, when the car was started. It was the duty of the motorman just before starting the car to look ahead to see if the track was clear. If you find from the evidence that plaintiff put his arm...