Devoy v. St. Louis Transit Company

• Decision Date: 21 December 1905
• Citation: 91 S.W. 140,192 Mo. 197
• Parties: DEVOY v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

91 S.W. 140

192 Mo. 197

DEVOY v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, Division One

December 21, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.

Affirmed on condition.

Boyle & Priest, George W. Easley, Edward T. Miller and J. W. Jamison for appellant.

(1) Plaintiff could only recover on the cause of action and for the negligence specified in his petition. Hutson v Taylor, 140 Mo. 263; Barclay v. Railroad, 148 Mo. 124; Pryor v. Railroad, 85 Mo.App. 367; Raming v. Railroad, 137 Mo. 506; Hite v Railroad, 130 Mo. 136. (2) The relation of passenger and carrier can be created only by contract, express or implied. Schepers v. Railroad, 126 Mo. 665; Schaefer v. Railroad, 128 Mo. 64. (3) Under the pleadings and all the evidence plaintiff was not entitled to recover. Jackson v. Railroad, 118 Mo. 199; Neville v. Railroad, 158 Mo. 293; Pryor v. Railroad, 85 Mo.App. 367; Bachrach v. Railroad, 54 N.Y.S. 958; Kohler v. Railroad, 99 Wis. 33; Railroad v. Mills, 105 Ills. 63; Nellis, Str. Surf. Railroads, p. 484. (4) The court committed error in giving to the jury plaintiff's instruction 1. (5) The court erred in denying defendant's application for the appointment of a special commissioner to take depositions. Sec. 800, R. S. 1899; State v. Murry, 91 Mo. 95; State v. Bailey, 94 Mo. 311; State v. Wheeler, 94 Mo. 252; Howland v. Reeves, 25 Mo.App. 458; Parker v. Hardy, 24 Pick. (Mass.) 246; 14 Enc. P. & P., p. 790, 903. (6) The verdict is grossly excessive. Stolze v. Railroad, 87 S.W. 517; Chitty v. Railroad, 166 Mo. 443; Nicholds v. Plate Glass Co., 126 Mo. 68; Rodney v. Railroad, 127 Mo. 68; Waldheir v. Railroad, 87 Mo. 37; Hollenbeck v. Railroad, 141 Mo. 112; Furnish v. Railroad, 102 Mo. 438; Gurley v. Railroad, 104 Mo. 211; Burdict v. Railroad, 123 Mo. 1.

Seneca N. & S. C. Taylor and Hamilton Grover for respondent.

(1) (a) When a car stops pursuant to a signal by a passenger, and the latter has one foot on the step of the platform intending to become a passenger, he has by such act become a passenger. Cobb v. Railroad, 149 Mo. 145; Barth v Railroad, 142 Mo. 549; Schepers v. Railroad, 126 Mo. 673; Stoddard v. Railroad, 105 Mo.App. 520; Meriwether v. Railroad, 45 Mo.App. 528; Gaffney v. Railroad, 81 Minn. 459; Merle v. Railroad, 66 Minn. 459; Steeg v. Railroad, 50 Minn. 149; Smith v. Railroad, 32 Minn. 1; Railroad v. Burgess, 200 Ill. 628; Railroad v. James, 69 Ill.App. 609; Railroad v. Craig, 57 Ill.App. 41; Railroad v. Duggan, 45 Ill.App. 450; Railroad v. Cook, 43 Ill.App. 634; Conners v. Railroad, 105 Ind. 62; Railroad v. Jolly, 67 N.E. 937; Davey v. Railroad, 177 Mass. 106; Gordon v. Railroad, 175 Mass. 181; Geddens v. Railroad, 103 Mass. 391; Railroad v. Smith, 74 Md. 212; Akersloot v. Railroad, 15 L. R. A. 489; Holmes v. Railroad, 153 Pa. St. 152; Clark's Accident Law, pp. 4-7; Booth on Street Railway Law, sec. 326. (b) The act of stopping a street car on being signaled is an invitation to would-be passengers to board the car, and is an invitation not only to the person who signaled the car to stop but to others who desire to board the car. Schepers v. Railroad, 126 Mo. 665; Gaffney v. Railroad, 81 Minn. 459; Railroad v. Duggan, 45 Ill.App. 450; Railroad v. Cook, 43 Ill.App. 634. (2) It is well settled that a person does not have to be actually on a street car before he becomes entitled to the rights of a passenger. If the car has been stopped on being signaled and he is in the act of getting aboard when the car starts, the relation of carrier and passenger is held to be established. Barth v. Railroad, 142 Mo. 549; Schepers v. Railroad, 126 Mo. 665; Reynolds v. Railroad, 92 Va. 400; Tucker v. Railroad, 77 Ga. 61; Railroad v. James, 69 Ill.App. 609; Railroad v. Cook, 43 Ill.App. 634; Railroad v. Jolly, 67 N.E. 935; Davey v. Railroad, 177 Mass. 106; Gordon v. Railroad, 175 Mass. 181; Gaffney v. Railroad, 81 Minn. 459; Miller v. Railroad, 66 Minn. 192; Smith v. Railroad, 32 Minn. 1. (3) A common carrier of passengers is bound to allow its passengers reasonable time to enter and leave its cars, and while it may start before a passenger has been seated, it must exercise the highest degree of care that prudent and cautious persons would use and exercise under similar circumstances, in starting its cars so as not to suddenly jerk or jar him, and thereby injure him. Grace v. Railroad, 156 Mo. 295; Cobb v. Railroad, 149 Mo. 135; Barth v. Railroad, 142 Mo. 550; Smith v. Railroad, 108 Mo. 243; Furnish v. Railroad, 102 Mo. 438. (4) It is negligence per se for those operating street railroads to start the car forward with a lurch while a passenger is in the act of getting on the same. Cobb v. Railroad, 149 Mo. 136; Barth v. Railroad, 142 Mo. 536; Schepers v. Railroad, 126 Mo. 673; Railroad v. Smith, 21 A. 706; Akersloot v. Railroad, 131 N.Y. 599; Sling v. Railroad, 52 N.W. 395; Davey v. Railroad, 177 Mass. 106; Geddens v. Railroad, 103 Mass. 391; Railroad v. James. 69 Ill.App. 611; Brien v. Bennett, 8 Car. & P. 724; Booth on Street Railways, sec. 326; Clark's Accident Law (Street Railways), sec. 3, pp. 4, 5, 6. (5) (a) Litigants will be confined to the course they have taken throughout the trial, even though that course may be inconsistent with that of the pleadings. State to use, etc., v. O'Neil, 151 Mo. 67; Fearey v. O'Neil, 149 Mo. 467; Crossland v. Admire, 149 Mo. 650; Benne v. Miller, 149 Mo. 228; Berkson v. Railroad, 144 Mo. 211; Stewart v. Outhwaite, 141 Mo. 562; Hill v. Drug Co., 140 Mo. 433; Hall v. Goodnight, 138 Mo. 576. (b) Where the defeated party asks instructions not at variance with the theory asked by the winning party, he cannot complain of the latter's instructions as a departure. Christian v. Ins. Co., 143 Mo. 460; Snowden v. Kessler, 76 Mo.App. 581. (6) (a) Jurors are not permitted to impeach the verdict by their own affidavits or evidence. Pratte v. Coffman, 33 Mo. 71; State v. Underwood, 57 Mo. 40; State v. Branstetter, 65 Mo. 149; State v. Fox, 79 Mo. 112; State v. Rush, 95 Mo. 199; State v. McNamara, 100 Mo. 101; State v. Dusenberry, 112 Mo. 295; Easley v. Railroad, 113 Mo. 247; State v. Schaefer, 116 Mo. 107. (b) But the affidavits of jurors may be received to explain or contradict evidence, tending to impeach the verdict. State v. Underwood, 57 Mo. 52; State v. Fox, 79 Mo. 112; State v. Rush, 95 Mo. 206; Woodward v. Loevy, 107 Mass. 453. (7) The court did not err in denying defendant's application for the appointment of a roving commissioner to find evidence tending to support appellant's motion for a new trial. If any such evidence existed, it should have used a reasonable effort to obtain the same before the trial, but it used none. Moreover, it should have presented affidavits of persons who knew facts of their own knowledge stating under oath such facts as they could swear to if a new trial were granted. Such it did not present, except Nay's, and his, the record undeniably shows, was false; and the juror, Bearden's, and his was incompetent; but if competent, his is contradicted by seven jurors, and is obviously false also. State v. Flutcher, 166 Mo. 582; Mirrielees v. Railroad, 163 Mo. 470; Schmitt v. Railroad, 160 Mo. 43; State v. Norman, 159 Mo. 531; State v. Tate, 156 Mo. 119; Kuenzel v. Stevens, 155 Mo. 280; State v. Bybee, 149 Mo. 632; Bank v. Porter, 148 Mo. 183; Folding Bed Co. v. Railroad, 148 Mo. 478; State v. Lucas, 147 Mo. 70; State v. Miller, 144 Mo. 26; State v. Tomasitz, 144 Mo. 86; State v. Williams, 141 Mo. 316; State v. Sansone, 116 Mo. 1; State v. Potter, 108 Mo. 424; Cook v. Railroad, 56 Mo. 380; Hesse v. Seyp, 88 Mo.App. 66; Madden v. Realty Co., 75 Mo.App. 358; Coal Co. v. Railroad, 10 Mo.App. 597; 14 Ency. Plead. & Prac. 905. (8) (a) In State v. McKenzie, 177 Mo. 716, it is held that the party must show, first, that the evidence has come to his knowledge since the trial; second, that it was not owing to the want of due diligence that it did not come sooner; third, that it is so material that it would probably produce a different result if the new trial were granted; fourth, that it is not cumulative only; fifth, that the affidavit of the witness himself should be produced, or its absence accounted for; and, sixth, that the object of the testimony is not merely to impeach the character or credit of a witness. The following cases are to the same effect: State v. Carpenter, 182 Mo. 53; Schmitt v. Railroad, 160 Mo. 45; State v. Bybee, 149 Mo. 632; Folding Bed Co. v. Railroad, 148 Mo. 485; State v. Tomasitz, 144 Mo. 86; State v. Miller, 144 Mo. 26; State v. Welsor, 117 Mo. 571; Mayor of Liberty v. Burns, 114 Mo. 433; Shotwell v. McElhinney, 101 Mo. 683; State v. Musick, 101 Mo. 260; State v. Crawford, 99 Mo. 74; State v. Lichliter, 95 Mo. 402; State v. Rockett, 87 Mo. 666; State v. Butler, 67 Mo. 59; State v. Ray, 53 Mo. 349. (b) Motions for new trial on the ground of newly-discovered evidence should be supported by the affidavits of the supposed witness or witnesses. State v. Flutcher, 166 Mo. 587; State v. Bowman, 161 Mo. 88; State v. Nettles, 153 Mo. 464; State v. Tomasitz, 144 Mo. 86; State v. Miller, 144 Mo. 26; State v. Campbell, 115 Mo. 391; State v. Musick, 101 Mo. 262. (c) Motions for a new trial on the ground of newly-discovered evidence must show that there has been no lack of diligence on the part of the party seeking the new trial. State v. Bybee, 149 Mo. 635; State v. Lucas, 147 Mo. 70; State v. Fischer, 124 Mo. 460; State v. Musick, 101 Mo. 260; State v. Crawford, 99 Mo. 74; State v. Lichliter, 95 Mo. 402; Snyder v. Burnham, 77 Mo. 52; Shaw v. Besh, 58 Mo. 107; Jaccard v. Davis, 43 Mo. 535; Tilford v. Ramsey, 43 Mo. 410; Callahan v. Caffarata, 39 Mo. 136; Richardson v. Farmer, 36 Mo. 35; Barry v. Blumenthal, 32 Mo. 29. Not a particle of diligence...