Eikenberry v. St. Louis Transit Co.

• Decision Date: 12 April 1904
• Citation: 80 S.W. 360,103 Mo. App. 442
• Parties: EIKENBERRY v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

80 S.W. 360

103 Mo. App. 442

EIKENBERRY v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

April 12, 1904.

STREET RAILWAY—PASSENGER BOARDING MOVING CAR—DUTY OF MOTORMAN—INSTRUCTIONS —CONTRIBUTORY NEGLIGENCE.

1. An instruction that if plaintiff, at a place where defendant received passengers, signaled the motorman his intention to become a passenger, and the motorman slowed the car down to enable plaintiff to board it, and plaintiff, while it was so slowed down, attempted to board it, it was the duty of the motorman to use a high degree of care to so control the car as to enable plaintiff to safely get on it as a passenger, correctly states the law.

2. The bracketed words in an instruction: "If the jury find * * * that the car was slowed down while passing around the curve * * * for the purpose of making it safe in getting around said curve, and that such slowing down was not done for the purpose of enabling plaintiff to get on the car, [then such slowing down of the car was not an invitation to plaintiff to attempt to get on the same]; and if the motorman did not know, and had no reasonable cause to think, that plaintiff was attempting to get on said car while it was in motion, then it was not negligent or improper in the motorman to accelerate the motion of said car when leaving said curve"—add no strength to the instruction, so that the omission thereof was harmless; the defense to which the instruction was applicable being that the motorman did not see plaintiff or know of his presence.

3. An instruction that the jury are the judges of the credibility of the witnesses, and of the weight to be given their statements, and if the jury believe, from all they have "seen and heard at the trial," that a witness has sworn falsely, they may disregard entirely his testimony, while too broad, will not be held to have misled the jury to suppose they could go outside the evidence and the demeanor of the witnesses.

4. It is not contributory negligence, as a matter of law, for an ordinarily active man, 38 years old, to attempt to board a street car turning out of a curve at a speed of 5 or 6 miles an hour; the place being the usual place where the car stops to let passengers on and off, and he being familiar with the place.

5. Any negligence of plaintiff in attempting to get on a street car while it was in motion will not prevent his recovery; the increase in the speed, after he had got part way on, made by the motorman when he knew or had good reason to believe that plaintiff was attempting to get on, having caused him to lose his balance and fall.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Uriah Eikenberry against the St. Louis Transit Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Statement.

BLAND, C. J.

Garrison avenue, in the city of St. Louis, runs north and south. Dickson street runs east and west, and crosses Garrison avenue. There is a street railway in both streets, and a curve in their intersection, on which cars traveling south on Garrison avenue may turn east into Dickson street. The curve begins at the northern intersection of the two streets, and ends about where the east line of Garrison avenue would be, if continued across Dickson street. There is a crossing from Dickson street near this line, and about 15 feet east of it is a flagstone crossing. The plaintiff resided near the crossing of Dickson street, and had for about two years prior to his injury almost daily boarded one of defendant's cars coming south on Garrison avenue, and turning east into Dickson street at or near the southeast corner of Dickson street and Garrison avenue. On January 21, 1901, at about 6:30 p. m., in company with H. T. Crist, plaintiff went from his residence, No. 3003a Dickson street, to the southeast corner of Garrison avenue and Dickson street, with the intention of taking a down-town car running east on Dickson street. Plaintiff testified that he took his stand at the southeast corner of Garrison avenue and Dickson street, and in a few minutes a car approached, traveling south on Garrison avenue; that when it first entered the curve he signaled the motorman his desire to become a passenger by raising his left hand, in which he held a book, and, as the front of the car came opposite him, he gave a like signal; that the car slowed down as it came into the curve, and continued to slow down until the rear platform was opposite him, and was then moving very slowly, and he thought it was going to come to a standstill; that he took hold of the handrail with his right hand, and stepped up on the first step with his left foot, when the car suddenly started up, with an accelerated speed and shock, which threw him around against the car; that he tried to regain his foothold, but was unable to do so, and was carried 60 or 70 feet, when his handhold gave away, and he fell or was thrown into the street, and injured severely and permanently. In respect to the occurrence, plaintiff was corroborated in every particular by the evidence of his companion, Crist, and as to the main facts by William L. McClaskey, who was near by. Plaintiff and his witnesses estimated the speed of the car at the time he undertook to get on it at about two miles an hour; and plaintiff testified that he and others were in the habit of getting on the cars at the southeast corner of Garrison avenue and Dickson street while the same were slowly moving, and that that point was the usual stopping place for the purpose of permitting passengers to get on and off the cars, and he had seen cars stop at that point to permit ladies to get on.

The motorman in charge of the car testified that he was running from 10 to 12 miles an hour before he reached the curve; that, as he approached the curve, in obedience to the orders of the defendant company, and to prevent breaking a wheel or causing the car to jump the track, he shut off the power and slowed down the speed to about 4 or 5 miles per hour, and continued at that speed until the car was passing out of the curve, when he turned on the power and resumed the speed that he had been traveling before entering the curve; that he never stopped a car in a curve to let passengers on or off; and that the southeast corner of Garrison avenue and Dickson street was in a curve, and he had never stopped there to let passengers on or off, but stopped at the flagstone crossing, 15 feet east, the usual and proper place to stop to let passengers on and off the cars. The conductor testified to substantially the same facts, and three or four witnesses for the defendant, who were on the car as passengers, testified that the speed of the car when plaintiff attempted to get aboard was from 4 to 6 miles per hour.

Witnesses experienced in running street cars and railroad trains testified that the natural effect of the motion of a car passing around a curve like the one at Garrison avenue and Dickson street would give the car a lateral motion, the first tendency of which would be to throw one standing on the step or platform in toward the car, and, as it went out of the curve, to throw him from the car. Other witnesses who traveled on this line testified that their experience when on the platform of the car was as described by the experts.

The jury found the issues for the plaintiff, and assessed his damages at $3,500. After an unavailing motion for new trial, defendant appealed.

For the plaintiff, the court gave the following instructions:

"(1) The court instructs the jury that if they find from the evidence in this case that on the 21st day of January, 1901, the defendant was operating the car mentioned in the evidence for the purpose of carrying passengers for hire; and if the jury further find from the evidence that on said day the plaintiff, at the crossing of Dickson street and Garrison avenue, in the city of St. Louis, signaled the motorman of said car of his intention to become a passenger on said car at said place; and if the jury further find from the evidence that said place was where the defendant received passengers on its eastbound car; and if the jury further believe from the evidence that defendant's said motorman on said car, in obedience to said signal, slowed said car down, approaching and at said place, to enable the plaintiff to get upon said car as a passenger, and that the plaintiff, whilst said car was so slowed down for said purpose, attempted to get upon said car as a passenger—then it was the duty of defendant's motorman in charge of said car to use a high degree of care, such as would be exercised by a skillful and careful motorman under like circumstances, to so control and manage said car as to enable the plaintiff to safely get upon said car, and reach a place of safety as a passenger.

"(2) If the jury believe from the evidence in this case that on the 21st of January, 1901, the defendant was operating the car mentioned in the evidence for the purpose of carrying passengers for hire from one point to another in the city of St. Louis by street railway; and if the jury further find from the evidence in this case that on the 21st day of January, 1901, the plaintiff was on the east crossing of Garrison avenue and Dickson street, in the city of St. Louis, intending to become a passenger upon defendant's eastbound car at said place, and said place was where the defendant received passengers on its east-bound car; and if the jury further find from the evidence that whilst so at said crossing the plaintiff signaled defendant's motorman in charge of its east-bound car, approaching said point, of his intention to become a passenger upon said car at said place; and if the jury further find from the evidence that said motorman, in obedience to said signal, slowed said car down as it approached said crossing for the purpose of receiving the plaintiff as a passenger on said car while it was so slowed down and moving slowly at said crossing; and if you...