Carter v. Wells

• Decision Date: 03 July 1931
• Docket Number: No. 21506.,21506.
• Citation: 40 S.W.2d 725
• Parties: CARTER v. WELLS et al.
• Court: Missouri Court of Appeals

40 S.W.2d 725

CARTER v. WELLS et al.

No. 21506.

St. Louis Court of Appeals. Missouri.

July 3, 1931.

Rehearing Denied July 14, 1931.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by William C. Carter, by William S. Edmiston, his next friend, against Rolla Wells, as receiver of the United Railways Company of St. Louis, and another. Judgment for the plaintiff, and the defendants appeal.

Affirmed.

T. E. Francis and B. G. Carpenter, both of St. Louis, for appellants.

Bert F. Fenn and James E. Dame, both of St. Louis, for respondent.

BECKER, J.

Plaintiff, William C. Carter, by his next friend, recovered judgment against the defendants in his action for damages for personal injuries alleged to have been sustained while a passenger on one of the defendants' street cars. The defendants in due course appeal.

Plaintiff's petition alleges: That together with his mother he was a passenger on a west-bound Delmar-Olive street car in the city of St. Louis on the evening of February 14, 1925. This line of cars, in proceeding westwardly along Delmar boulevard, crosses the Wabash Railroad tracks at a point at that time known as the Delmar-Wabash grade crossing. That because of the alleged negligence of the servants of the defendants, the said car on which plaintiff was a passenger was caused or permitted to stop on the tracks of the Wabash Railroad in front of and in close and dangerous proximity to an approaching railroad train of the said Wabash Railroad, and that, by reason of the said stopping of the said street car on the said tracks in front of the approaching railroad train, plaintiff became in imminent peril of being struck by the train, and the passengers, including plaintiff, became very much alarmed and in fear of their safety, and by order of defendants' employee crowded toward the exit and attempted to leave said car while acting upon the instinct of self-preservation, and without time for deliberation, and plaintiff was crushed against the seats and knocked from the steps of said car to the ground and trampled upon by said crowd, whereby he received injuries.

The assignments of negligence set out in the petition are as follows:

"1. That said defendant, his agents and servants carelessly and negligently allowed and permitted said street railway car on which plaintiff was a passenger to be placed and be upon said Wabash Railway tracks in front of a moving train and in close and dangerous proximity thereto, when said defendant, his agents and servants saw, or by the exercise of the highest degree of care could have seen, the approaching railway train, and as a direct result thereof plaintiff was placed in a position of imminent danger, and while endeavoring to escape therefrom without time to deliberate was injured as aforesaid.

"2. That defendant, his agents and servants negligently and carelessly failed and omitted to keep a lookout or watch for trains upon said railway tracks at said time and place when defendant, his agents and servants knew, or by the exercise of the highest degree of care could have known, that railway trains frequently crossed said Delmar at said place, thereby placing plaintiff in a position of apparent imminent peril, as aforesaid, and directly causing his injuries, as aforesaid, when defendant, his agents and servants, by exercising the highest degree of care in keeping a lookout or watch for trains, could have avoided plaintiff's injuries, as aforesaid, but negligently and carelessly failed and omitted so to do, thereby directly causing plaintiff's injuries, as aforesaid."

The answers were general denials.

At the close of the case each of the defendants requested an instruction in the nature of a demurrer, each of which was overruled, and the defendants jointly requested separate instructions seeking to withdraw from the jury each of the assignments of negligence set out in the petition, each of which the court overruled.

It is no longer open to question but that, under the law of negligence, if one, by the negligence of another, is placed in a situation of apparent imminent peril, he is not required, in attempting to escape therefrom, to use the judgment and discretion that is required of him when not dominated by terror of impending danger; and if, without having time to deliberate, and acting upon the instinct of self-preservation, and as a prudent person might be expected to act in the circumstances, he is injured by adopting a dangerous alternative, he may still recover from the one by whose negligence he has been impelled to act. This is true though no injury would have resulted had no attempt to escape been made. Under the authorities, the principles covering liability in such cases are: First, that the peril or alarm must be caused by negligence of the defendant; second, the apprehension of peril from the standpoint of the injured person must have been reasonable; third, the appearance of danger must have been so imminent as to leave no time for deliberation. Bricker v. City of Troy, 315 Mo. 353, 287 S. W. 341; Delfosse v. United Rys. Co. (Mo. Sup.) 201 S. W. 860; Kleiber v. People's Ry. Co., 107 Mo. 240, 17 S. W. 946, 14 L. R. A. 613; Stanley v. Helm, 204 Mo. App. 159, 223 S. W. 125; Coy v. Dean, 222 Mo. App. 67, 4 S.W.(2d) 835.

It needs no citation of authorities that where plaintiff, as here, has charged specific negligence, plaintiff must adduce evidence in support of one or more of such specific assignments of negligence in order to take his case to the jury.

Defendants here on appeal urge that the plaintiff failed to adduce testimony entitling him to go to the jury under either of his assignments of negligence, and that therefore the trial court erred in overruling the demurrer offered at the close of the case, and also in overruling defendants' separate withdrawal instructions.

Our examination of the record brings us to the conclusion that plaintiff adduced testimony in support of both of his assignments of negligence sufficient to warrant a submission of his case thereon to the jury.

The testimony in the record with reference to the manner in which plaintiff met with his injuries is that of the plaintiff himself together with a statement of plaintiff's mother read into the record...