Detchemendy v. Wells

• Decision Date: 02 July 1923
• Docket Number: No. 17689.,17689.
• Citation: 253 S.W. 150
• Parties: DETCHEMENDY v. WELLS
• Court: Missouri Court of Appeals

253 S.W. 150

DETCHEMENDY v. WELLS

No. 17689.

St. Louis Court of Appeals. Missouri.

July 2, 1923.

Rehearing Denied July 18, 1923.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

"Not to be officially published." Action by Joseph E. L. Detchemendy against Rolla Wells, receiver of the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

T. E. Francis and W. H. Woodward, both of St. Louis, for appellant.

Jones, Hooker, Sullivan & Angert, of St. Louis, for respondent.

DAVIS, C.

Plaintiff commenced this action on the 20th day of May, 1920, by filing his petition in the circuit court of the city of St. Louis, alleging that he was injured by being thrown to the street, caused by defendant's employs in charge of a street car negligently starting the car violently and suddenly forward as he was in the act of boarding the car. The cause went to trial before the court and a jury; plaintiff obtaining judgment for $5,000, from which defendant appeals.

So much of the petition as is necessary to determine the issues involved is as follows:

"Plaintiff states that on the morning of February 12, 1920, he went to the southwest corner of Union and Easton avenues in said city, at the usual place for passengers to enter upon and alight from east-bound Wellston cars operated by the defendant, for the purpose of taking passage upon one of the cars operated by defendant on its Wellston line and for the purpose of becoming a passenger thereon.

"Plaintiff states that, while he stood on said southwest corner of Union and Easton avenues in said city, one of the east-bound Wellston cars, at the time in the possession of and operated by the defendant, stopped for the purpose of allowing passengers, including plaintiff, to get thereupon.

"Plaintiff states that thereupon, without delay and with due care on his part, he proceeded to board said east-bound Wellston car of the defendant, and had put his left foot on the step entering said car, and was in the act of placing his right foot upon the platform of said car and of boarding the same as a passenger, when the defendant's agents, servants, and employés in charge of said car carelessly and negligently caused said car to start and plunge violently and suddenly forward and proceed on its way without waiting for the plaintiff to get a safe and firm footing upon said car."

The plea to the merits is, first, a general denial, and, second, a plea of contributory negligence that plaintiff's injuries, if any, were caused by his own carelessness and negligence in attempting to board a moving street car. The reply was a general denial.

I. Defendant charges the trial court erred in giving plaintiff's instruction No. 8, which is as follows:

"The court instructs the jury that, although you may find that the plaintiff was not at the regular place taken by passengers when about to board cars at the location mentioned in the testimony, at the time the car mentioned in the testimony came to a stop, yet, if you find that plaintiff presented himself at said place for the purpose of boarding said car before the same started and before the door was closed, then it was the duty of the defendant to afford him a reasonable opportunity to safely board said car before starting the same, irrespective of whether the conductor saw or did not actually see plaintiff at said place; and if defendant failed so to do and the plaintiff was injured thereby, then plaintiff is entitled to recover."

The argument in support thereof is stated thus:

"The instruction is erroneous in that it creates the relation of carrier and passenger, providing plaintiff formed a mental purpose of becoming a passenger before the car started and the doors were closed, even though (a) plaintiff was not at the usual place for boarding street cars when the car stopped; (b) plaintiff's mental purpose was not communicated to defendant by word or deed; (c) defendant's conductor was not afforded a reasonable opportunity to become aware of plaintiff's position or purpose."

The facts produced by plaintiff and defendant are in conflict. Plaintiff asserts the car was stopped when he attempted to board it, while defendant maintains it was in motion. Upon these theories it was submitted to the jury. Plaintiff's evidence presents that when he arrived at the northwest corner of Easton and Union avenues an east-bound Wellston car was just pulling to its usual stop on the southwest corner; the front then being a few feet west of where it eventually became stationary. Realizing that he had a brief moment only to catch it, he ran 40 or 45 feet around the rear end of the car and faced north. There he saw several men ready to get on, two of whom were in front of him. He was about a foot behind them. They boarded the car ahead of him, and he put his left foot on the step while the door was open. The door lacked an inch and a half or two inches of being open as far as possible; the evidence seeming to show it could or would not open farther. He carried a small package in his hand, and did not take hold of any part of the car with his hands. His weight was on his left foot, which was on the step, and as he was about to put his right foot on the platform the car started suddenly. Being thrown off his balance, he swung back and forth, tried to recover his equilibrium, made a lunge for the bar, was carried about a car and a half's length and thrown to the street, falling in the intersection where automobiles go south on Union, halfway between the west curb of Union and the Union car tracks. When he made the lunge for the bar the door was not open far enough for him to reach it. No bell or other signal were heard. The street was paved with asphalt. It was a pay-as-you-enter car; the conductor standing to the right as you enter. When he fell the car continued, but stopped on the east side of Union for a moment. The conductor motioned to him to come, then closed the door and the car moved on. A written statement of plaintiff, made February 24, 1920, while in bed, introduced by defendant, said that when he reached the northwest corner of Union and Easton the car which he subsequently boarded was standing on the south-west corner. Witness Wencher for plaintiff testified the car started with a jerk, and he did not hear any bell or signal given The conductor was in his usual place next to the door. The car was standing still when plaintiff started to get on. His left, foot was on the step.

Defendant's evidence and theory is shown by the testimony of the conductor as follows: The car stopped on the southwest corner, the usual stopping place, and three or four passengers boarded the car. He saw the plaintiff coming around the rear of the car, which was moving at that time; the rear being close to the west curb of Union. He was running and tried to get on the car at a point about even with the curb line. He got his foot on the step, and with his right hand tried to grasp the rod, missed it, and fell to the street. The car was moving three or four miles an hour.

Defendant, in arguing for error the above instruction, says:

"The relation of carrier and passenger is contractual. It only arises where there has been an offer to receive a person as a passenger which has been accepted by the person or acted upon by him in other words, there must always be a situation from which a reasonable inference may be drawn that there was an offer and an acceptance."

We do not disagree with defendant's legal statement, but do disagree in the application of the law to the facts.

If there was a variance between the petition stating that plaintiff was on the southwest corner when the car came to a stop and the proof that he was on the northwest corner as the car was approaching and ran around to the southwest corner after it stopped, neither timely nor appropriate objection was made nor affidavit of surprise filed as is required, for there was not a total failure of proof. Fisher & Co. v. Realty Co., 159 Mo. 562, 32 S. W. 443.

The car had stopped for passengers and three or four safely boarded the car. Before the two preceding plaintiff had boarded the car plaintiff presented himself in juxtaposition to the step of the car, immediately behind the two passengers just preceding him, while the car stood, according to plaintiff's evidence, at a fixed position. The evidence of the parties seems to show that the two passengers immediately preceding plaintiff safely boarded the car. Having taken a position immediately to the rear of other passengers about to board a stationary car stopped to receive them, with the intention of becoming a passenger, plaintiff, at that time, entered into the contractual relation of passenger with the carrier and became entitled to all the rights of such as though he had, in the first instance, before the car stopped, presented himself at the usual stopping place with the others there waiting to become passengers. That he was not at the usual stopping place for street cars when the car stopped is, under the evidence, immaterial, for he reached there while the car was taking on passengers and in ample time to board it, as well as to give defendant an opportunity to see him. The conductor was charged with the duty of seeing those waiting to board the car, as well as affording them a reasonable opportunity to safely board it. The position of plaintiff, immediately behind the other passengers, before the car started, communicated his mental purpose to defendant and apprised the conductor of his position and purpose.

Plaintiff's evidence shows that he was in the act of boarding the car when it suddenly started. He had his left foot on the step and was about to put his right on the platform. So far as his evidence shows, the invitation to enter had not been closed. Both he and his witness state they did not hear a bell or signal given. This, while negative, is some evidence that the bell or signal was...