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

• Decision Date: 24 June 1913
• Citation: 158 S.W. 390
• Parties: CRAIG v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

158 S.W. 390

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

St. Louis Court of Appeals. Missouri.

June 24, 1913.

Rehearing Denied July 5, 1913.

1. CARRIERS (§ 280) — DUTY OF CARRIER.

While a common carrier of passengers is not an insurer of their safety, yet he is obliged to exercise the highest degree of care practicable for the safety of the passenger, although a continuous inspection of its cars is not required.

2. CARRIERS (§ 247) — CARRIAGE OF PASSENGERS — RELATION OF PASSENGERS.

The relation of carrier and passenger continues until the passenger has alighted from the car, and therefore the obligation of high care obtains until the passenger has left the carrier's vehicle in safety.

3. CARRIERS (§ 320) — CARRIAGE OF PASSENGERS — ACTIONS — EVIDENCE — SUFFICIENCY.

In an action against a carrier for injuries received by a passenger who slipped upon the step as she alighted, the question of the carrier's negligence held, under the evidence, for the jury.

4. TRIAL (§ 178) — NONSUIT — INFERENCES.

In determining whether a defendant is entitled to a peremptory instruction, all inferences should be exercised in favor of plaintiff.

5. CARRIERS (§ 292) — CARRIAGE OF PASSENGERS — DUTY TO CLEAR STEPS OF VEHICLES.

In determining whether a street railroad company was negligent in failing to keep the steps of its car free from ice and frozen slush, the obligation of high care is to be considered in connection with the circumstances of the case, and whether prudent persons would have anticipated the serious results from the freezing of the deposits.

6. TRIAL (§ 141) — PROVINCE OF JURY — UNCONTRADICTED TESTIMONY.

The mere fact that defendant's conductor testified that the slush was removed from the car steps at a certain point, and was not contradicted, does not have the effect of an admission, but may be passed upon by the jury who are the sole judges of the credibility of weight of testimony.

7. CARRIERS (§ 292) — CARRIAGE OF PASSENGERS — INJURY TO PASSENGERS.

Where the conductor of a street car cleaned the steps before beginning a 14 minutes trip, his failure to clean the steps again before plaintiff alighted will not render the defendant company liable, unless in the exercise of a high degree of care the frozen slush on the steps should have been observed.

8. TRIAL (§ 296) — INSTRUCTIONS — CURE OF INSTRUCTIONS BY OTHERS.

In an action against a street railway company for injuries received by plaintiff, who slipped upon the icy step of the car, the failure of plaintiff's instruction, which in general terms authorized a recovery if the injury was caused from the failure of defendant's servants to exercise vigilance to keep the steps free from ice, to charge on the defense of removal of the snow before the beginning of the trip, which was a short one, is cured where defendant's instruction specifically charged that no recovery could be had if the step was cleared before

beginning the trip, and the ice resulted from deposits while the car was en route, for the instructions are to be considered together, and defendant's instruction is more favorable than the law allows, while the previous instruction was merely general, and not erroneous.

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

Action by Samantha E. Craig against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle & Priest, Paul U. Farley, and Elmer C. Adkins, all of St. Louis, for appellant. S. C. Rogers, of St. Louis, for respondent.

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 De Baliviere 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 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 2d, and the time about 5:15 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 slipped and fell, to her injury, which appears to be a serious and probably a permanent one. Plaintiff's fall was occasioned from 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 later 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 14 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 15 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 that 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...