Craig v. United Railways Company of St. Louis

• Decision Date: 24 June 1913
• Citation: 158 S.W. 390,175 Mo.App. 616
• Parties: SAMANTHA E. CRAIG, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Court: Missouri Court of Appeals

158 S.W. 390

175 Mo.App. 616

SAMANTHA E. CRAIG, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Court of Appeals of Missouri, St. Louis

June 24, 1913

Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.

Judgment affirmed.

Boyle & Priest, Paul V. Farley and Chauncey Clarke for appellant.

(1) In the absence of proof, negligence will not be presumed against appellant from the mere fact that the respondent may have been injured, as carriers are not insurers of the safety of their passengers. Van Cleve v. Railroad, 107 Mo.App 96; Palmer v. Railroad, 111 N.Y. 488; Kelly v Railroad, 112 N.Y. 443; Fearn v. Ferry Co., 143 Pa. 122; Proud v. Railroad, 64 N. J. L. 702. (2) The court committed error in giving instruction number one for the plaintiff, for, since it entirely ignores the element of time, the jury was given a roving commission whereby they could find appellant negligent, even though the slush and ice whereon respondent slipped and fell were deposited by a stranger immediately before respondent slipped and fell thereon, and before appellant's servants could have known thereof, by the exercise of due care. Van Cleve v. Railroad, 107 Mo.App. 101; Proud v. Railroad, 64 N. J. L. 702. (2) Instruction number two given for the plaintiff is erroneous for the following reasons: (a) Although the court attempted to define the circumstances necessary to make respondent contributorily negligent, under the instruction as given, respondent could never be contributorily negligent in the absence of actual notice of danger brought home to her. As she could be contributorily negligent through the failure to exercise due care, even though actual notice be not brought home to her, the court committed error by giving this instruction. Van Cleve v. Railroad, 107 Mo.App. 96; Palmer v. Railroad, 111 N.Y. 488. (b) The court assumes that the step was in a dangerous condition, when this was a disputed point. Wilson v. St. Joseph, 139 Mo.App. 564; Glaser v. Rothschild, 221 Mo. 204.

S. C. Rogers for respondent.

(1) The court did not err in overruling the appellant's demurrer to the evidence. It is the duty of the appellant to see that its car step is free from mud, slush and ice where a passenger would be likely to slip upon it, and that is a question for the jury. Barr v. City of Fairfax, 156 Mo.App. 295; Waldopfel v. Transit Co., 102 Mo.App. 524; Simon v. Railroad, 161 Ill.App. 502; Nelliss, Street Surface Railroads, page 429; Gilman v. Railroad, 168 Mass. 454; Neslie v. Railroad, 113 Pa. 300; Railroad v. Cockerell, 17 Ky. L. Rep. 1037; Foster v. Railroad, 182 Mass. 378; Walton v. Ins. Co., 162 Mo.App. 316; Railroad v. Gresham, 140 S.W. 483; Rosen v. Boston, 187 Mass. 245; Parker-Washington Co. v. Dennison, 155 S.W. 797; Beale v. Railroad, 155 S.W. 853; Walker v. Railroad, 155 S.W. 895; Weston v. Railroad, 73 N.Y. 595; Timpson v. Railroad, 52 Hun 489; Railroad v. Keegan, 210 Ill. 150; Railroad v. Smith, 162 Ill. 185; 2 Hutchinson on Carriers (3 Ed.), p. 1054, sec. 935; 2 Shearman & Redfield on Negligence (5 Ed.), p. 917, sec. 506. The appellant owed respondent the highest degree of care. Haas v. Railroad, 128 Mo.App. 79; Schiller v. Breweries Co., 156 Mo.App. 569. Appellant is responsible for the slightest negligence. Fillingham v. Transit Co., 102 Mo.App. 573; Reynolds v. Railroad, 162 Mo.App. 618; Deskins v. Railroad, 151 Mo.App. 432; Reardon v. Railroad, 215 Mo. 105. (2) The court did not err in giving instruction number 1 for plaintiff. Senf v. Railroad, 112 Mo.App. 74; Fillingham v. Transit Co., 102 Mo.App. 573; McKinstry v. Transit Co., 108 Mo.App. 12; Reardon v. Railroad, 215 Mo. 105; Walton v. Insurance Co., 162 Mo.App. 316; Logan v. Street Railway, 183 Mo. 582; Waldopfel v. Transit Co., 102 Mo.App. 524; Haas v. Railroad, 128 Mo.App. 79; Gilman v. Railroad, 168 Mass. 454; Foster v. Street Railway, 182 Mass. 378; Anjou v. Railroad, 208 Mass. 273; Rosen v. Boston, 187 Mass. 245; McGuire v. Transit Co., 104 A.D. 105; Murphy v. Railroad, 80 A. 331; Railroad v. Park, 96 Ky. 580; Railroad v. Gresham, 140 S.W. 483; Hebert v. Railroad, 85 Minn. 341; Nellis, Street Railroad Accident Law, page 63; Nellis on Street Surface Railroads, page 429; 1 Nellis on Street Railways (2 Ed.), p. 565, sec. 288; 2 Joyce on Electric Law, p. 887, sec. 545b; Booth on Street Railways (2 Ed.), p. 544, sec. 332; Smithers v. Railroad, 67 A. 167. (3) Instruction No. 2 given for the respondent is not erroneous. (a) No contributory negligence is pleaded. Cain v. Wintersteen, 144 Mo.App. 1. (b) The court does not assume that the step was in a dangerous condition. This instruction correctly declares the law. Fullerton v. Fordyce, 121 Mo. 1, 144 Mo. 519; 2 Hutchinson on Carriers (3 Ed.), p. 1054, sec. 935; Hulbert v. Railroad, 40 N.Y. 145. (c) Compare this instruction with instruction Nos. 3 and 6 given for appellant. It is not erroneous. Papineau v. Brick & Coal Co., 153 S.W. 1076.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries through the alleged negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.

Defendant, an incorporated company, is a common carrier of passengers in St. Louis. Plaintiff boarded one of its street cars operated on the Hamilton Avenue Line, at Wellston, paid her fare and took passage to the car barns at DeBaliviere and Delmar avenues, where she contemplated transferring to another line for her home. The conveyance was one of those known as a "pay-as-you-enter car." In street cars of this pattern, one enters by means of a step and platform in the rear of the box, where the conductor is stationed to collect fares; but the rear exit of such cars is through another door beside the conductor's box and by means of a step adjacent, though distinct from that on which the entrance is made.

Plaintiff remained in the car, after entering it at Wellston, until it reached the terminus and entered the barn, where she undertook to alight therefrom, to the end of going upon another car on defendant's Creve Coeur Line. The date was February second and the time about five fifteen in the evening. It is said that darkness prevailed, though the lights in the car and car barn were aglow. Upon the stopping of the car in the barn, the conductor opened the door for the exit of passengers, and passed out to the company's office, immediately preceding plaintiff in alighting therefrom. Plaintiff passed from her seat in the car through the usual exit so opened by the conductor, and, as she placed her foot upon the step furnished for that purpose, she slipped and fell, to her injury, which appears to be a serious and probably a permanent one. Plaintiff's fall was occasioned by the accumulation of slush and ice and mud on the step provided for the exit of passengers.

It appears that considerable snow had fallen during the early morning of that day, but the storm had ceased before noon. Thereafter the sun shone brightly, and the snow melted for a time, so as to become slushy; but late in the afternoon, the weather became colder and freezing, and ice formed because of that fact. Plaintiff says she observed neither mud nor slush nor ice on the rear step of the car as she entered it at Wellston, and, indeed, observed none as she passed out of the exit until after she had slipped off of the step and fallen to the ground below. However, immediately after slipping upon the step and falling, plaintiff turned about and saw the accumulation of slush, ice and mud on the step which conduced to precipitate her forward to her injury. The trip from Wellston to defendant's car barn where plaintiff slipped and fell is a short one and consumes but fourteen minutes in transit.

For defendant, the evidence tends to show that the particular car in question operated only between these two points, and that the steps were inspected at either end of the line and cleaned before returning. The conductor testified that he had the steps of the car well cleaned of the accumulated slush and snow about fifteen minutes before plaintiff's fall therefrom and immediately before starting from Wellston where she boarded it. Because of this testimony and because plaintiff said she observed no slush or ice on the step in the rear of the conductor's box where she entered, upon boarding the car at Wellston, it is argued the court erred in declining to direct a verdict for defendant. The argument proceeds on the theory that a common carrier of passengers discharges the full measure of its duty by inspecting its appliances immediately before starting on the trip and removing slush or accumulated ice from the steps of the car at that time.

It is true that a common carrier of passengers is not an insurer of their safety, and it is true, too, that the law does not cast upon such carrier the obligation of a continuous inspection of its cars while in transit, if it has made a careful one before starting. But though such be true, the obligation which the law does annex to the calling is to exercise high care at all times for the safety of passengers, and the question in judgment is, of course, to be determined with reference to the duty thus imposed and the consideration is to be had with reference to the facts of the particular case. The relation of passenger and carrier certainly continues until the passenger has alighted from the car. [See Fillingham v. St. Louis Transit Co., 102 Mo.App. 573, 77 S.W. 314.] Therefore, the obligation of high care obtains with respect to the safety of the steps provided for the exit of passengers and enjoins the duty upon the carrier to be alert toward keeping them free from ice, snow and mud which may occasion an injury. [See...