Brock v. St. Louis Transit Co.

• Decision Date: 26 April 1904
• Citation: 107 Mo. App. 109,81 S.W. 219
• Court: Missouri Court of Appeals
• Parties: BROCK v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

81 S.W. 219

107 Mo. App. 109

BROCK v. ST. LOUIS TRANSIT CO.^*

St. Louis Court of Appeals. Missouri.

April 26, 1904.

STREET RAILROADS—PERSONAL INJURIES—TRESPASSER — LICENSEE—ORDINARY CARE—EVIDENCE—QUESTION FOR JURY—INSTRUCTIONS— DEMURRER TO EVIDENCE—WAIVER.

1. A defendant offering evidence in its own behalf after the court has overruled its demurrer to plaintiff's evidence waives its demurrer.

2. A demurrer to the whole evidence is not waived by requesting instructions on the theory of the case adopted by the opposing counsel.

3. A person knowing that a street car sometimes made an extra trip for extra pay, who hailed the car on its last trip for the day, and boarded it, after it stopped, for the purpose of negotiating with the carmen for an extra trip, was not a trespasser, but was there on the implied invitation of the carmen to contract for an extra trip, and hence they were bound to exercise ordinary care and diligence for his safety while on the car.

4. Where it was dangerous to start a car while a person who had boarded it for the purpose of negotiating with the carmen for an extra trip was standing on its platform, it was the duty of the carmen to give him warning of the intention to start the car, and a reasonable time to get into the car or alight.

5. Where a street railway company owed to a person standing on the platform of a car only the duty of exercising ordinary care for his safety, and not the high degree of care required to be exercised for the safety of a passenger, the fact of an injury to him occasioned by the sudden starting of the car and its rounding a curve, causing him to be thrown to the ground, is not evidence of the company's negligence.

6. In an action for injuries sustained by one who had boarded a street car for the purpose of negotiating with the carmen for an extra trip, by reason of the car suddenly starting up while he was on the platform of the car, evidence examined, and held sufficient to require the submission to the jury of the question of defendant's failure to exercise ordinary care.

7. An instruction, in an action for injuries sustained by one boarding a street car for the purpose of negotiating with the carmen for an extra trip, by reason of the car suddenly starting up while he was on the platform, that the motorman was under the direction of the conductor, was not erroneous as not based on the evidence, it being a matter of common knowledge that motormen stop and start the cars in response to signals from the conductors.

8. An instruction assuming the existence of facts contradicted by evidence is properly refused.

9. An instruction in an action for injuries sustained by plaintiff by reason of the sudden starting of a street car while he was standing on its platform, which charged that plaintiff assumed the risk, but left out of view evidence that the motorman was given a signal to go ahead, was properly refused.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Action by Augustus A. Brock against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Kiskaddon & Matthews, for appellant. R. H. Stevens and J. K. Hansbrough, for respondent.

Statement.

BLAND, P. J.

Action for personal injuries, caused by the following alleged negligence of defendant: "That about the 17th day of August, 1902, plaintiff, with other parties, went onto the rear platform of one of defendant's Clayton cars, which had just arrived from Clayton, and was standing on the tracks at Forsyth Junction, in the city of St. Louis, for the purpose of arranging with the conductor of said car for passage from said Forsyth Junction to Clayton; it being then about twelve o'clock at night, and that being the last car from the city of St. Louis to Clayton. That while standing on said platform and talking to the conductor of the car with the view of being taken to Clayton on said car, defendant, by its servants in charge of the running of said car, and who knew, or by the exercise of reasonable care would have known, that plaintiff was standing on said rear platform, suddenly, and without any notice or warning whatever to plaintiff, negligently and wrongfully started said car forward at a rapid rate of speed, and within a few feet of the place of starting the car made a sharp curve to the right, which said sudden starting, rapid rate of speed, and curving to the right threw plaintiff violently from said platform upon the space paved with stones or bricks between the two railroad tracks at that point, and plaintiff fell and struck said paved space with such force that he was thereby greatly bruised and injured." The answer was a general denial and the following plea of contributory negligence: "And for further answer and defense defendant states that plaintiff's alleged injuries were caused by his own negligence in getting aboard defendant's car without then and there intending to become a passenger thereon, and after having so boarded said car, and after said car had started and got into rapid motion, plaintiff carelessly and negligently voluntarily left said car while the same was in rapid motion, and by thus carelessly and negligently leaving said car while the same was in rapid motion plaintiff was thrown to the ground, and thereby and by reason of his own carelessness and negligence as aforesaid plaintiff received and suffered the alleged injuries of which he complains."

The defendant, at the time of the occurrence at which plaintiff alleges he was injured, operated a line of railroad, using electricity as the motive power, between Forsyth Junction, in the city of St. Louis, and the Log Cabin Club, in St. Louis county. The eastern terminus of the line was at Forsyth Junction in the city, and the western terminus at the Log Cabin Club in the county. This line at that time connected at its eastern terminus at De Baliviere avenue with the Delmar cars running into the city, and passengers going out to Clayton from the city left the Delmar cars at Forsyth Junction, and took a car on this line, known as the "Clayton Line." From about 12 o'clock at night the cars which before and at that time were out on the Clayton Line ceased to run, and were taken from Forsyth Junction south, passing around a loop at Forest Park, and from thence north to the De Baliviere sheds, about two blocks north of Forsyth Junction, where they were put up. No more cars ran over the Clayton Line until morning. The Clayton Line intersected De Baliviere avenue at right angles, and when these night cars finished their run for the night they were transferred to the tracks on De Baliviere avenue by a track making a curve from the Clayton Line to the Delmar Line track on said avenue, it being about such a curve as street car tracks make in turning street corners in the city. Within 12 or 15 feet of this curve, and north of it and between the curve and the Wabash Railroad tracks, is a small watchhouse about 14 feet square. This watchhouse is situated immediately south of the Wabash Railroad tracks, and at it was stationed a watchman in the employ of the Wabash Railroad Company, whose duty it was to flag trains when required, and to control gates across De Baliviere avenue to protect street cars running along the avenue from being run into by trains on the Wabash Railroad. On August 17, 1902, at about 12 o'clock at night, plaintiff, with his son, arrived at Forsyth Junction on a Delmar car, intending to take a car on the Clayton Line and go to Clayton, where he lived. There either came on the same car with him or he found at Forsyth Junction Mr. and Mrs. Gould and a man named Burrell. It was a clear, starlit night, a number of electric lights were burning, and everything about the place was light, and in the condition it was usually in at that time of night. Gould and plaintiff learned from the Wabash watchman, Stone, that the last car for that night had gone west on the Clayton Line. They decided to wait for the first east-bound car on the Clayton Line, to ascertain if they could succeed in inducing the men in charge to return and carry them to Clayton. Plaintiff testified that he knew the car on the Clayton Line sometimes made an extra trip if the men were paid to do so, and as the last car came back from the west he...