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

• Citation: 131 S.W. 903,153 Mo. App. 55
• Parties: CHALMERS v. UNITED RYS. CO. OF ST. LOUIS.
• Decision Date: 10 November 1910
• Court: Court of Appeal of Missouri (US)

131 S.W. 903

153 Mo. App. 55

CHALMERS v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

November 10, 1910.

1. CARRIERS (§ 303)—STREET RAILROADS—INJURIES TO PASSENGER ALIGHTING FROM CAR.

Where plaintiff, a passenger on defendant street railroad's car, was promised by the conductor that the car would stop at a usual stopping place, and, on the car's slowing down, stood on the step, holding to the handrail, but through a sudden jerk of the car resulting from acceleration of speed was thrown to the ground and injured, defendant was liable; plaintiff being entitled to rely on the conductor's invitation to be prepared to alight.

2. RELEASE (§ 24)—DENIAL—TENDER.

In a personal injury action, where execution of a release and receipt of payment were denied by the plaintiff, there was no necessity of a tender of the amount alleged to have been received before suit.

3. RELEASE (§ 58)—EXECUTION—JURY QUESTION.

In a personal injury action, whether plaintiff executed a release of damages and received and withheld an order on defendant's treasurer until after suit was brought held, under the evidence, for the jury.

4. WITNESSES (§ 393) — ADMISSIBILITY IN EVIDENCE.

Where, though a deposition was not filed in a cause, it conclusively appeared to have been given by plaintiff and signed by her after hearing it read, any statement therein tending to contradict material statements made by her at the trial were competent to be received in evidence.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Bessie Chalmers against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Boyle & Priest and T. M. Pierce, for appellant. Benj. J. Klene, Richard F. Ralph, and Ben. J. Wolf, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of the alleged negligence of defendant in operating its street car. Plaintiff recovered, and defendant prosecutes the appeal.

It appears plaintiff was a passenger on defendant's west-bound street car on Olive street in St. Louis. Having paid the car fare, the conductor furnished her with a transfer to be used on defendant's car running north on Jefferson avenue. It appears just before the car on which plaintiff was a passenger reached Jefferson avenue she signaled the same to be stopped by ringing the electric bell, and walked to the rear end of the car with the purpose of alighting there. The car failed to stop in compliance with her signal, however, and she told the conductor she desired to go north on Jefferson avenue, whereupon he said he would let her off at Beaumont, the next street to the west. Plaintiff says thereupon she assumed her position on the rear platform of the car to the end of stepping off when it should come to a stop at the next corner, that the car slowed down as it came to the corner of Beaumont and Olive streets as though it was going to stop for her to alight, and she placed her foot upon the step, holding fast to the handrail on the rear of the car. Just as she placed her foot upon the step, the car, instead of stopping, jerked suddenly forward, and precipitated her into the street, causing the several injuries complained of.

It is first argued for defendant that the court should have directed a verdict for it for the reason the evidence fails to show the jerk of the car which precipitated plaintiff into the street was extraordinary or unusual. The evidence in the record inheres with more force in this respect than defendant concedes; for, besides that of plaintiff to the effect the car gave a sudden and unexpected jerk, a passenger testified that it jerked him backwards against his seat with a considerable jar. But we are not impressed with the argument advanced for the reason that even an ordinary jerk of the car is sufficient prima facie in the circumstances of the case. It appears the whole matter occurred under the very eye of the conductor who had promised plaintiff the car would be stopped at the corner of Beaumont and Olive streets, only a block away, for her to alight. The point mentioned is a usual stopping place for street cars, and plaintiff was thus invited by the conductor in charge to be present and prepared to alight. Instead of the car stopping, as the conductor agreed, it did no more than slow down, indicating the stop was being made. Plaintiff had a right to rely upon this invitation and assume her position adjacent to the step if she exercised ordinary care for her safety by holding fast to the handrail as the evidence discloses. Having thus induced plaintiff to assume the position she occupied, it would seem that the exercise of high care for her safety forbade any acceleration of speed which would tend to suddenly jerk the car and precipitate her into the street. Plaintiff had a right to anticipate the car would stop at the point in question, and not be suddenly moved forward without warning after she was invited to assume a position of readiness to alight. The principle of liability is more or less illustrated in the following cases: Jones v. Springfield Traction Co., 137 Mo. App. 408, 118 S. W. 675; Westervelt v. St. Louis Transit Co., 222 Mo. 325, 121 S. W. 114; Groshong v. United Railways Co., 142 Mo. App. 718, 121 S. W. 1084.

The answer pleaded a release and acquittance of the cause of action relied upon in the petition. It is averred that, in consideration of $5 paid plaintiff, she released and acquitted defendant of all claims for damages arising from her injury. Plaintiff's reply, which was verified under our statute requiring as much when the execution of a...