Delfosse v. United Rys. Co.

• Decision Date: 04 March 1918
• Docket Number: No. 19064.,19064.
• Citation: 201 S.W. 860
• Parties: DELFOSSE v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

201 S.W. 860

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

No. 19064.

Supreme Court of Missouri, Division No. 1.

March 4, 1918.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Christina Delfosse against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

E. P. Walsh, Chauncey H. Clarke, and T. E. Francis, all of St. Louis, for appellant. Brownrigg, Mason & Altman, of St. Louis, for respondent.

GRAVES, J.

By her petition the plaintiff says that she was a passenger upon and was injured by jumping from one of defendant's moving street cars in the city of St. Louis. The negligence charged to the defendant is thus stated in the petition:

"Plaintiff further states that at or near the intersection of said last-named streets, while she was a passenger as aforesaid on said car, she was severely and permanently injured as hereinafter specified, as a direct result of the negligence of the said defendant by its conductor and motorman in charge of said car.

"Plaintiff further says that the said negligence of the said defendant consisted in this, to wit, that the said car having collided with a wagon ahead, the conductor and motorman of said car dismounted from said car and negligently left the same in charge of no other agent or servant of said company or of any other person, and negligently left the same standing on an incline, with the doors open, and without having the car secured so as to hold it in position on said track.

"Plaintiff further says that the said car, thus temporarily abandoned, with the doors open, on an incline, without being secured in its position, shortly after the said motorman and conductor left the same, began to run backwards down said incline, and it appeared to the plaintiff that another collision was imminent at the rear of said car between the said car and another vehicle, as the said car ran backwards down said incline.

"Plaintiff further says that, finding herself in the said moving car with no one in charge, and believing that by reason of the premises she was in imminent danger, she became very much alarmed and in fear for her safety, and by reason of said alarm, fear, and belief attempted to alight from said car while it was moving backwards as aforesaid."

The answer was a simple general denial. Upon a trial before a jury there was a verdict for the plaintiff in the sum of $8,000, and from a judgment upon that verdict the defendant brings this appeal.

The errors assigned cover: (1) A failure to direct a verdict for the defendant; (2) giving of erroneous instructions for the plaintiff; (3) refusal to give proper instructions for the defendant; (4) admission of improper evidence for plaintiff; and (5) excessive verdict.

Plaintiff was a young lady of 19 years. She says that she was sitting in the rear portion of the car, when the car (then traveling up grade) collided with a brewery wagon; that the car was brought to a standstill, and the conductor and motorman got off of the car and went to the wagon; that the car remained stationary for two or three minutes, and then began to move slowly backward, or down the grade; that there was a horse and buggy to the rear of the car, and beyond it another street car; that some of the passengers began to rise out of their seats, and that she, fearing another collision, got up and got out at the open door of the car, and in thus getting off of the car she received the injuries of which she complains. She says that she saw no boys or other persons at the front end of the car, where the brakes were operated. Other evidence can best be outlined in the course of the opinion, in connection with the points made. This is a general outline of the case.

I. Whilst the evidence upon some material questions is not very strong for the Plaintiff, yet there was enough to take the case to the jury. The evidence shows that there was a slight incline at the place of the accident. The alleged negligence is twofold: (1) Leaving the car on this slight incline with no person in charge thereof; and (2) leaving the car without having secured it in position on the track. With the first ground we are not impressed by the facts. It was not negligence for the conductor and motorman to leave their car upon this slight incline, provided they had properly secured the car before leaving it. So that the only real ground of negligence is that the railway employés negligently failed to properly secure their car upon the track before leaving it. Under the evidence this became a question for the jury. It is true that there is much evidence tending to show that the car stood from two to four minutes or more before it started to run slowly back down the slight incline; yet there is one witness who says:

"Q. Now, how long did the car stand stationary before it started to move back? A. About two or three seconds."

We might grant that the fact of the car standing still from two to four minutes tends to show that it had been securely placed in position by defendant's employés, before leaving it; yet the testimony of this witness would tend to show that it had not been properly secured. Two to three seconds is a very limited space of time, and if, as a fact, it did begin to move backward in that time, it would at least be evidence that it had not been properly secured. We conclude for this reason that on this ground of negligence the demurrer to the evidence was properly overruled.

II. There is evidence for the defendant to the effect that the brakes were firmly fixed by the motorman before leaving the car, and that there were two boys on the front end of the car who were turning the brake wheel about the time the car started backward. Upon these facts the defendant asked two instructions, one of which reads:

"The court instructs the jury that, if you find and believe from the evidence that the car was left standing with all the brakes set on said car, and was in a secure position, and you further find from the evidence that some one other than the employés on said car released said brakes, causing said car to start backwards, then in that event plaintiff is not entitled to recover, and your verdict must be for the defendant."

This instruction the court refused, and such refusal is charged as error. We think that this instruction should have been given. The evidence tended to show that the brakes were unloosed by a third person, for whose act the defendant would not be responsible under the other facts of this case. It was at least a reasonable deduction from all the other facts that the defendant was not responsible for the movement of the car backward. The great weight of the testimony shows that the car remained stationary from two to four minutes or more, which would corroborate the testimony of the motorman that he had put on the full power of the brakes by pushing the brake lever to the right as far as it would go. Then there was evidence of these boys being there, and that when the motorman overtook the car the lever had been moved toward the left, thus releasing the brakes. It was a question for the jury, and the instruction supra was a proper one to submit the question. The refusal of this...