Burns v. United Rys. Co. of St. Louis

Decision Date08 April 1913
PartiesBURNS v. UNITED RYS. CO. OF ST. LOUIS.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Mattie L. Burns against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle & Priest, Geo. T. Priest, and Elmer C. Adkins, all of St. Louis, for appellant. Barclay, Fauntleroy, Cullen & Orthwein and W. R. Gilbert, all of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries alleged to have been suffered by plaintiff by being struck and injured by some object projecting from a car of defendants whilst plaintiff was standing near defendant's track on a cinder pathway maintained by defendant for the use of its patrons. Plaintiff recovered and defendant prosecutes the appeal.

The petition alleges that on January 11, 1909, plaintiff was standing on a cinder path or platform at a stopping place for defendant's cars, known as Wheaton, in the county of St. Louis, intending to take passage upon a car of what is known as defendant's "Creve Cœur" line of railway; that on the approach of a car, plaintiff signaled to the motorman in charge thereof, indicating her desire to be received thereon; that the motorman in charge thereof, negligently disregarding the signal, failed to stop the car, but negligently allowed it to continue running at a negligent and excessive speed of about 30 miles per hour; that as the car passed plaintiff "an object which defendant negligently allowed to project from said car caught plaintiff, knocked her down and dragged her," whereby plaintiff was injured.

The defendant in its answer denied generally the allegations of the petition, and averred that "plaintiff's injuries, if any, were caused by her own negligence and carelessness in standing so dangerously near defendant's tracks as to be struck by its passing car."

The evidence as to how plaintiff received her injuries consisted solely of her own testimony. It appears that about 6 o'clock in the evening, on the date above mentioned, plaintiff was standing on the south side of defendant's track, at the stopping place mentioned, intending to take passage on an eastbound car of defendant. There is no station at this point, nothing but what is described as a cinder platform maintained by defendant for the accommodation of its passengers. This was somewhat below the level of the car tracks, and sloped gently away from them. The tracks at this point curve somewhat, the curve beginning some little distance west of the stopping place; the "platform" being on the inner or concave side of the curve. Plaintiff testified that as a car approached from the west she saw it when about 35 feet away from her, and that when the front of the car was within 10 or 12 feet of her she signaled to the motorman; that the car did not stop, but that after the front part of the car had passed her she felt a stinging blow in the face, and at the same instant the electric lights on the car went out; that the car ran for something like a block before stopping, and the motorman called to her that he would come back and get her; that "they worked for some time on the car, the lights went up and they came back and got" plaintiff. She testified that the lights remained out on the car about 10 minutes, then reappeared, and the car backed up to take her on.

Plaintiff's forehead was cut and injured, her nose broken, and her left eye injured. The injury to her forehead was described as a "hole about the size of a nickel," which had to be stitched, and which left a scar. The injury to the nose was between the eyes Plaintiff testified that the blow was quite severe, and that when she was struck it seemed as if something was pulling her back, and that she went down on her arms and knees, that her hair and hat were "pushed" far back. She testified that she was standing three or four feet from the ends of the ties supporting the rails; that the car in question approached at a high rate of speed, and as it turned into the curve it was rocking, and that because of this and the speed of the car she stepped back as the car approached, even a little farther from the track. The physician who treated plaintiff testified to her injuries and stated that there were abrasions on her face, and that after the injury her face looked "like somebody had gone over it with sand paper."

At the close of plaintiff's case, defendant offered a peremptory instruction in the nature of a demurrer to the evidence, which was refused by the court. The defendant offered no testimony.

The court at the instance of plaintiff instructed the jury that if they found that plaintiff took a stand at a place where defendant customarily received passengers on its cars and where defendant invited persons desiring to become passengers to stand, and that she stood sufficiently far from the track to avoid being struck by cars in the ordinary operation thereof, and intended to take passage on one of defendant's cars, and was ready, willing, and able to pay her fare, and that while so standing defendant ran one of its cars by the place where she was standing, and negligently allowed an object to project from said car, which knocked plaintiff down and injured her, then plaintiff was entitled to recover. The only other instruction given at the request of plaintiff pertained to the measure of damages.

The following instruction asked by defendant was given by the court: "The court instructs you that the burden of proving a case rests upon the plaintiff and unless she has done so to your satisfaction by the preponderance, or greater weight, of the evidence, then your verdict must be for defendant."

One instruction requested by defendant was refused, but refusal thereof is not assigned as error.

During the opening argument of plaintiff's counsel, Mr. Cullen, before the jury, the following occurred: Mr. Cullen: "Gentlemen of the jury, there is very little left in this case for discussion. Practically, you know where there is a contested issue that we hear from both sides as to how it happened. In this particular case we hear from only one side and the natural, the inevitable, the reasonable, and logical conclusion is that the silence of the defendant stands as a confession of the charge." Mr. Priest: "Your honor, I except to that statement, that the silence of the defendant in this case is a confession that the accident happened the way the plaintiff says it...

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