Brod v. St. Louis Transit Company

• Decision Date: 14 November 1905
• Citation: 91 S.W. 993,115 Mo.App. 202
• Parties: BROD, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Court of Appeals

91 S.W. 993

115 Mo.App. 202

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

Court of Appeals of Missouri, St. Louis

November 14, 1905

Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.

AFFIRMED.

STATEMENT.--On November 10, 1903, plaintiff was a passenger on one of defendant's Easton avenue cars traveling west in the city of St. Louis. She was injured and on account of her injuries recovered a judgment for nine hundred dollars from which defendant appealed. Defendant's negligence and plaintiff's injuries are alleged as follows in her petition:

"That defendant, in violation of its duty to plaintiff, on the tenth day of November, 1903, carelessly and negligently operated a car, the motor, machinery, appliances and parts of which were insecure, and while in this unsafe and insecure condition of said motor, machinery, appliances and parts thereof, the employees of defendant, operating said car carelessly and negligently operated the same as that, in consequence of the defective condition of said motor appliances and parts of said car, and the careless and negligent manner in which the same was operated by the employees of defendant thereof, there was an explosion of the motor, or some other part of the apparatus of said car causing the car to take fire and that plaintiff, either by such explosion, or in the rush of passengers to escape from a seeming imminent danger, was thrown or crowded through the window of said car, falling and striking upon the pavement with great force and violence, whereby she was covered with cuts, wounds and bruises and contusions, received a sprain to her back, a shock to her nervous system and spinal cord whereby she was caused to suffer excruciating physical pain and mental anguish, and will continue to suffer the same, in all reasonable probability for years to come; that her clothing was greatly damaged, if not completely ruined, and that her purse and umbrella which she was carrying were lost."

The answer was a general denial.

Plaintiff testified as follows: "When we reached just a little west of Vandeventer avenue there was a loud explosion in the front part of the car, and immediately following the explosion there was a sheet of flame swept the car and the whole south side of the car was ablaze. The flames lasted several minutes, it seemed to me, and I was so terrified I thought the whole car was going to pieces and we would all be burned to death. It stampeded the passengers; everybody seemed excited and all trying to get out of the car as soon as possible. I saw the doorway was blocked, and no chance to get out that way, and I rushed to the window, intending to get out of the window, because I was afraid I would be burned to death, and when I got to the window I saw my sister's body was hanging half out the window, and I became unconscious; and when I returned to consciousness I was lying on a bed in a house on Easton avenue. And when I became conscious there was a lady there bathing my face." Plaintiff also testified that the car stopped at Vandeventer avenue to let passengers on and off, that it started with a jerk and then the explosion came. "There was a sort of roaring noise seemed to come from underneath the car; sounded like the whole car was going to pieces. . . . And the crash of glass. All the glass in the windows fell out from the force of the explosion;" that the explosion sounded like the report of a cannon. In respect to her injuries plaintiff testified as follows: "My whole face was terribly bruised and contused, and my right eye was bruised and contused and blackened, and there was a deep cut on my right cheek, and other cuts on my face, and the skin was taken off the right side of my face and the dirt ground into my flesh. My nose was injured so I lost all feeling completely in my nose and upper lip for about two months, and my teeth were injured and my gums were so badly swollen I could not take any solid food in my mouth for several days; and my back was sprained, and my right hip was badly bruised, and I received a severe shock to my nervous system. I suffered excruciating pains from the nervous shock and cuts on my body, and I couldn't sleep for two weeks for the nervousness, and I still suffer from insomnia, and at times I suffer with pains in the back of my head and neck." Plaintiff also testified that she was confined to her bed for two weeks and to the house for six weeks.

In regard to the explosion and its effect and the scaring and stampeding of the passengers (the car was crowded) plaintiff was corroborated by four or five other witnesses, some of whom were passengers and others residents of the neighborhood where the casualty occurred.

There is no direct evidence in regard to how plaintiff got out of the car. The evidence shows she either jumped out or was pushed out of a window. She was found lying in the street in an unconscious condition.

Defendant's evidence shows that the car was equipped with approved, modern electric appliances; that it had been carefully inspected on the evening of October ninth and found in good condition; that the accident was caused by a wire concealed between the inside and outside casing of the car; that this wire was in the proper and usual place for such wires and was properly insulated; that it had burned in two on account of a short circuit of the electric current it carried; that the circuit was made short in some unexplainable way; that such an accident as described by plaintiff's witnesses had never been heard of before and it was impossible for an explosion to have taken place; that the car was inspected in half an hour after the accident and the motor and all the apparatus except the burned-off wire found in good condition.

The evidence of defendant's expert electricians showed that the equipment of the car was the approved electric equipment of the modern street car used all over the world, and that of defendant's inspector that the inspection made on the ninth was thorough and the car was found in perfect condition and was in that condition when it left defendant's shops on the morning of November tenth. The burned wire being concealed, it could not be discovered by an inspection without tearing out the side of the car. In rebuttal, a motorman of four or five years' experience testified that in his experience as a motorman he had frequently had such accidents occur.

Judgment affirmed.

Boyle & Priest, Geo. W. Easley and Geo. T. Priest for appellant.

(1) The court erred in refusing to sustain defendant's demurrer at the close of all the evidence, because the plaintiff failed to prove the specific charge of negligence alleged in his petition. When the plaintiff in his petition limits his right to a recovery to a specific charge of negligence it must be proven, and when there is a failure of proof no verdict can stand in his favor. Hite v. Railroad, 130 Mo. 132; Waldhier v. Railroad, 71 Mo. 517; Price v. Railroad, 72 Mo. 517; Feary v. Railroad, 162 Mo. 75; McManamee v. Railroad, 135 Mo. 440, and authorities cited. (2) The court erred in giving plaintiff's instruction No. 1. It is error to permit the plaintiff in an instruction to recover on a cause of action not stated in his petition, and for that reason plaintiff's instruction No. 1 was erroneously given. Price v. Railroad, 71 Mo. 414; Ely v. Railroad, 77 Mo. 34; Current v. Railroad, 86 Mo. 66; Allen v. Railroad, 183 Mo. 411.

Seneca N. & S. C. Taylor and Bert F. Fenn for respondent.

(1) A carrier of passengers is required, so far as it is capable by a very high degree of care, to carry them safely, and it is responsible for all injuries resulting to its passengers from even the slightest negligence on its part. Hite v Railroad, 130 Mo. 139; Clark v. Railroad, 127 Mo. 208; O'Connell v. Railroad, 106 Mo. 482; Furnish v. Railroad, 102 Mo. 450; Leslie v. Railroad, 88 Mo. 53; Waller v. Railroad, 83 Mo. 615; Lemon v. Chanslor, 68 Mo. 356; Higgins v. Railroad, 36 Mo. 428; Aston v. St. Louis Transit Co., 105 Mo.App. 226; Choquette v. Railroad, 80 Mo.App. 520; Parker v. Railroad, 69 Mo.App. 54; Powers v. Railroad, 60 Mo.App. 482; White v. Railroad, 136 Mass. 324; Nagle v. Railroad, 88 Cal. 86; Street Railway v. Cook, 145 Ill. 551; Lambeth v. Railroad, 66 N.C. 494; Railroad v. Thompson, 76 Ga. 770; Palmer v. Canal Co., 120 N.Y. 175; Penn Co. v. Roy, 102 U.S. 451; Railroad v. Horst, 93 U.S. 291; Railroad v. Derby, 14 How. (U.S.) 468; 2 Greenleaf on Evid., sec. 221; 2 Kent Commentary, 600. Carriers of passengers by street railways are held to the same degree of care as steam railways. Jackson v. Railroad, 118 Mo. 224; Sullivan v. Railroad, 133 Mo. 6; Olsen v. Railroad, 152 Mo. 432. (2) An explosion, followed by setting fire to the car of a carrier of passengers for hire, resulting in injury to a passenger, constitutes a prima facie presumption of negligence on the part of the carrier, which casts upon the carrier the burden of showing to the reasonable satisfaction of the jury that such explosion and fire took place notwithstanding the carrier had exercised to prevent the same the utmost care, skill and foresight of very cautious persons engaged in that employment, and notwithstanding that the carrier had not been guilty of even the slightest negligence tending to produce such explosion and fire, but that it was the result of mere casualty or unavoidable accident. Poulsen v. Nassau Elec. Co., 18 A.D. 221; Poulsen v. Nassau Elec. Co., 30 A.D. 246; Gilmore v. Railroad, 6 A.D. 117; Leonard v. Railroad, 57 A.D. 125; Buckee v. Railroad, 64 A.D. 360; Cassaday v. Railroad, 68 N.E. 10; Clark's Accident Law, sec. 50, page 108. All the above authorities relate exclusively to injuries occasioned by electric explosions and fires, caused by defective...