Cobb v. Lindell Ry. Co.

• Decision Date: 07 March 1899
• Citation: 50 S.W. 310,149 Mo. 135
• Parties: COBB v. LINDELL RY. CO.
• Court: Missouri Supreme Court

50 S.W. 310

149 Mo. 135

COBB v. LINDELL RY. CO.

Supreme Court of Missouri, Division No. 1.

March 7, 1899.

STREET RAILROADS — INJURIES TO PASSENGER — NEGLIGENCE — PLEADING — EVIDENCE — PROVINCE OF JURY.

1. Rev. St. 1889, § 2074, requires that in construing a pleading to determine its effect its allegations shall be liberally construed with a view to substantial justice. A petition alleged that a passenger on a street car requested the conductor to let her off at a certain street; that, on reaching there, it appeared that the car was not going to stop, and the passenger again indicated to the conductor her wish to get off there; that immediately, as if in response to her request, the car slowed down, until its motion was scarcely perceptible, when she attempted to alight; and that while doing so the car started suddenly, and she was thrown down. Held, after verdict, that it did not charge that the passenger specially requested to be let off at an unusual place, but it implied that the car was stopped at her request, and that the conductor saw, or should have seen, her alighting: so that it was unnecessary to allege that the car started before she had time to alight.

2. Several blocks before reaching a crossing, a passenger on a street car told the conductor to let her off there, and, seeing that the car was about to pass that point, she again signaled him to let her off, and he nodded to her. Immediately the car slowed down until the motion was scarcely perceptible, when she attempted to alight, taking hold of the railing, and, when one foot was on the ground, the car suddenly started, throwing her. The company claimed that the car slowed up where it did, as was usual, to enable the motorman to see if there were any cars on an intersecting line on the next street, but the testimony did not show that the passenger knew this, or knew that it was unlawful to stop in the middle of a block to discharge passengers. She knew it was customary for the conductor to ring the bell to stop, but testified that she did not know whether he rang it this time or not, and that she did not see him after she signaled. Held, that the case was properly left to the jury to determine whether the passenger was justified in alighting.

3. The passenger and several witnesses testified that they did not notice whether the conductor rang the bell, but all the witnesses except one, who was on the sidewalk, were on the rear car. One witness testified that the conductor placed his hand on the bell rope. Held, that the evidence raised the question whether the car was stopped to let the passenger off.

4. The last witness also testified that, after the passenger had fallen, the conductor asked witness if he had seen that. Held, that the evidence raised the question whether the conductor saw the passenger attempting to alight.

5. The high degree of care which devolves on a railroad company to protect the person of its passenger is not limited to the construction and equipment of the road, but includes also the service of the servants of the company in charge of the train. While the passenger is required to exercise only ordinary care for his own safety, the conductor is required to exercise a very high degree of care.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by Mary Cobb against the Lindell Railway Company. A verdict and judgment were rendered for plaintiff, and, motions for a new trial and in arrest being overruled, defendant appeals. Affirmed.

Suit for damages for personal injuries alleged to have been received by plaintiff, a passenger, through the negligence of the servants of defendant carrier. The petition charges that on the evening of August 20, 1893, plaintiff took passage on one of defendant's street cars at Finney and Vandeventer avenues, in St. Louis, intending to be transported to Washington avenue; that shortly after the car left Finney avenue she paid her fare to the conductor, and at the same time informed him that she desired to get off at Washington avenue, to which the conductor replied, "All right;" that when the car reached Washington avenue she noticed that apparently it was not going to stop, and she again indicated to the conductor that she wanted to get off at that point, and in reply the conductor nodded his head to her; that immediately, and as if for the purpose of allowing her to alight, the car slowed up as if about to stop, and came so near to a standstill that motion was scarcely perceptible; then she rose from her seat, walked out on the platform, and when the motion of the car had ceased, or nearly so, she descended the steps of the platform, and was in the act of alighting, having one foot on the street and the other on the step, when the car, by the negligence of the defendant's servants in charge, was suddenly and swiftly started forward, whereby plaintiff was thrown violently upon the street, and her left thigh and left arm broken. The answer was a general denial and a plea of contributory negligence. The testimony on the part of the plaintiff tended to prove the statements in her petition. At the close of plaintiff's evidence, defendant asked an instruction for a nonsuit, which the court refused, and defendant excepted. The testimony on the part of defendant tended to show that the first indication of plaintiff's desire to stop was the signal she gave the conductor as they were crossing Washington avenue, which he understood to mean a desire to stop at the Olive street crossing, which was the next street south; that, as the train approached Olive street, the motorman slowed down, to observe if the Olive street cars, which had the right of way at that crossing, were near; this he did, as was his duty, without signal from the conductor; seeing the crossing clear, the motorman put on the power to cross, and resumed speed, and then the conductor gave him the signal to stop, which he obeyed, and stopped on the south side of Olive street; that, after the power had been put on, and the car had resumed speed, plaintiff arose from her seat, went out on the rear platform, and in attempting to alight fell on the street. Defendant's testimony is conflicting on the point as to whether or not the conductor saw the plaintiff when she went out on the platform and attempted to alight. Defendant read in evidence a city ordinance, as follows: "Sec. 1275. * * * First. No cars when not in actual use for passenger travel shall be kept standing in any street or public thoroughfare. Second. No car shall be allowed to stop on a cross walk nor in front of any intersecting street, except to avoid collision or to prevent danger to persons in the street. * * * Third. When any car shall be required to stop at the intersection of streets to receive or leave passengers, it shall be stopped so as to leave the rear platform partly over the crossing." At the close of the evidence, defendant asked the court to give a peremptory instruction to the jury to find for defendant, but the court refused, and defendant excepted. Plaintiff asked the following instructions, which the court gave, and defendant duly excepted: "(1) If the jury find from the evidence that on the 20th day of August, 1893, the defendant was a carrier of passengers for hire by street railroad, and used the railway and cars mentioned in the evidence for said purpose; and if you further find from the evidence that on said day the defendant's employés in charge of its cars received the plaintiff as a passenger upon its cars; and if you find from the evidence that the plaintiff paid her fare as such passenger to defendant's employé authorized to receive same for the defendant; and if you further find from the evidence that the plaintiff requested defendant's conductor in charge of the car on which she was such passenger to allow her to leave said car at Washington avenue crossing; and if you believe from the evidence that upon said car approaching said crossing it did not stop or slacken up, and that thereupon the plaintiff gave a signal to said conductor to stop said car, to enable her to alight therefrom; and if you further find from the evidence that said conductor did, in obedience to such signal, cause said car to slacken up between Washington avenue and Olive street to enable the plaintiff to alight from said car as such passenger; and if you further find from the evidence that whilst said car was so slackened up, and whilst said car was moving slowly, the plaintiff was in the act of stepping from said car, and whilst doing so defendant's employés in charge of said cars either caused or suffered said cars to be started forward with increased speed, or with a jerk, and that thereby the plaintiff was thrown upon the street, and injured; and if the jury further find from the evidence that defendant's servants in charge of its car could, by the exercise of a very high degree of care, such as would have been used by careful and skillful men under like circumstances, have prevented such movement of said car at such time, and failed to do so; and if the jury further find from the evidence that the plaintiff, at the time she attempted to alight from the car, was exercising ordinary care for her own safety in doing so, under the circumstances shown in evidence, — then plaintiff is entitled to recover. (2) The court instructs the jury that if they believe from the evidence that the car upon which plaintiff was a passenger came to a stop between Olive street and Washington avenue, and that the conductor saw plaintiff pass from her seat out onto the platform for the purpose of alighting from the car, then it was the duty of the conductor to have held the car stationary until she alighted, or warn her not to alight, if, by the exercise of a very high degree of care, such as would be exercised by careful and skillful men under the same circumstances, he could have done so. (3) By the term `ordinary care,' used in the instructions, is meant the degree of...