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

• Decision Date: 30 December 1921
• Docket Number: No. 21121.,21121.
• Parties: CRONE v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

236 S.W. 654

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

No. 21121.

Supreme Court of Missouri, in Banc.

December 30, 1921.

Appeal from St. Louis Circuit Court; Samuel Rosenfeld, Judge.

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

Charles W. Bates, T. E. Francis, Chauncey H. Clarke, and Albert D. Nortoni, all of St. Louis, for appellant.

Sale & Fry, of St. Louis, for respondent.

GRAVES, J.

The points really involved in this case can best be determined by a glance at the petition. In outlining the petition the causal negligence and another act of negligence not charged to be causal must be noted. Plaintiff was a passenger on one of defendant's cars, which cars were operating on double tracks. Cars going in one direction would pass cars going in the opposite direction. It would appear that the sides of cars next to the space between the two tracks were equipped with more iron protection bars upon the windows than were the sides of the cars which ran next to the street spaces. The plaintiff, who was a passenger, was riding on the side of the car next to the street space, so that he averred in his Petition:

"That the plaintiff, desiring to go to a point on the defendant's said Olive street line, boarded one of the cars of the defendant at or about Twelfth and Olive streets, and became and was a passenger on said car on or about the 23d day of April, 1917, and, having paid his fare as such passenger, took a seat towards the rear of said car on the north side thereof, next to the open window thereof, at about half past 10 o'clock in the morning on said 23d day of April, 1917; that the defendant had negligently equipped the openings of said windows on the side of the car where plaintiff was sitting with an insufficient number of iron bars to protect the bodies and arms of passengers in said car from coming in contact with objects outside of and near to such car; that there were on said side of said car only three iron bars with a space between said bars of at least five inches, and of such a width that the right elbow and a portion of the right arm of a passenger on the north side of said car, when resting on the window sill of said car, or on one of said iron bars, would protrude from the side of said car.

"Plaintiff further states that, while sitting in said car as aforesaid, he was reading a newspaper, with his right arm resting at the elbow on the window sill of said car, or on one of said bars; that the defendant carelessly and negligently operated said car by or past an automobile truck that was on the north side of said Olive street between the 3100 and 3200 blocks, with the rear end of said truck in close proximity to defendant's car tracks; and that in consequence of the aforesaid negligent operation of said car by the defendant said car collided with said truck with great force and violence, whereby plaintiff's right arm was struck and broken in three places, and the elbow thereof was crushed and fractured.

"Plaintiff states that by reason of said collision and as a result thereof plaintiff suffered a severe nervous shock; that his right arm was crushed at the elbow, and the bones of said arm were crushed and broken in three places above the elbow; and that thereby his arm is permanently impaired."

It is clear that plaintiff attempts to allege two negligent acts: (1) The negligent equipment of the car windows; and (2) the negligent operation of the car. It is equally true that the only charge of causal negligence is the negligent operation of the car.

The answer was: (1) A general denial: and (2) a plea of contributory negligence. Reply was a general denial. Verdict and judgment was for $8,000, from which this appeal was taken by defendant. Details can best be left to the opinion.

I. With the views that we have of this case it is not one for lengthy statement or opinion. Plaintiff was a passenger (as stated) riding upon that side of the car next to the space between the car track and the curbing of the street. He was reading a newspaper, and had his elbow protruding beyond the side of the car. There was a plea of contributory negligence, and this act of the plaintiff in permitting his elbow to protrude outside of the car is the act of contributory negligence relied upon by learned counsel for appellant. Holding a newspaper would indicate that the protrusion of the elbow was not great. Whatever be the rule in other jurisdictions, it is settled in Missouri that such act is not negligence as a matter of law. Our rule is that it is a question for the jury. Gardner v. Met. Street Ry. Co., 223 Mo. loc. cit. 419 and 420, 122 S. W. 1068, 18 Ann. Cas. 1166, and the cases there cited.

II. It will be observed from our statement that the petition charges a negligent operation of the car "with the rear end of said truck in close proximity to defendant's track." It might have been in "close proximity," and yet not in dangerous proximity, and this point is made. If it was not dangerously close, there was no negligence. The fact clearly shown in evidence that the greater portion of the car passed in safety would indicate that "close" proximity was not "dangerous" proximity. I would rather tend to show that something intervened between the time the motorman started his car in passing the end of the truck than that there was dangerous proximity when the car was started. It is a serious question as to whether or not the petition states a cause of action in this regard. The negligence charged as to the operation of the car has for its basis the position of the truck. To make it plain, no negligence in the operation of the car is charged, save that it was operated when it was in "close" proximity to the rear of an auto truck. There is not even an allegation that the proximity of the truck was such as to make it dangerous to try to pass it with the street car. "Close proximity" might mean different distances. The instructions follow the petition. Of this situation urgent complaint is made in a brief filed in this court. With our view upon another question, we need only give this passing notice. This because the defects can be remedied upon a retrial. We have ruled supra that plaintiff was not guilty of contributory negligence as a matter of law; in other words, that there was a case for the jury if negligence was properly pleaded. Upon the latter we doubt that "close" proximity pleads a case of negligence.

III. We find, however, no insistence in the brief and the assignment of errors to the effect that the petition failed to state a cause of action in regard to negligent operation except in what may be gleaned from the refused instructions. As said, this is the only causal negligence in the petition. State ex rel. National Newspapers' Ass'n v. Ellison et al., 176...