Elliot v. United Railways Company of St. Louis
| Decision Date | 06 May 1919 |
| Citation | 214 S.W. 234,201 Mo.App. 662 |
| Parties | MINERVA N. ELLIOT, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Rhodes E. Cave, Judge.
Judgment affirmed.
T. E Francis, R. E. Blodgett, Joseph Park and C. H. Clarke for appellant.
(1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence, for the reason that the place where plaintiff attempted to board the car was not a usual or customary stopping place and there was no showing that the operatives actually saw her attempting to board the car. A showing of either one of these conditions is a prerequisite to a recovery in a boarding case. McCarty v. Railway Company, 105 Mo.App. 596, 600; Husbands v. Railway Co., 196 S.W. 78, 81; Murphy v. Street Railway Company, 125 Mo.App. 269, 274; Jacobson v. St. Louis Transit Co., 106 Mo.App. 339, 346. Plaintiff's testimony, that she had "frequently taken the second car back," was not sufficient to establish a custom, so as to charge defendant with constructive knowledge that plaintiff was attempting to board the "second car back," since, "to make a custom effective, it must be shown to have been general, uniform, certain and notorious, known to the paries or so general and universal in its character that knowledge must be presumed." McMiens v. United Railways Co., 274 Mo. 326, 331; McCarty v. St. Louis & Suburban Railway Co., 105 Mo.App. 596, 601. (2) Since plaintiff's evidence showed that the car she attempted to board was not at a regular stopping place and the evidence was not sufficient to establish the existence of a custom to invite passengers to board there, plaintiff's instructions Nos. 1 and 2 are erroneous for failing to require a finding by the jury that the operatives of the car actually knew she was attempting to board it. McCarty v. St. Louis & Suburban Railway Company, 105 Mo.App. 596, 600; Husbands v. St. Louis Electric Terminal Railway Co., 196 S.W. 78, 81; Murphy v. Metropolitan Street Railway Company, 125 Mo.App. 269, 274; Jacobson v. St. Louis Transit Co., 106 Mo.App. 339, 346. The failure to hypothetically submit every constituent element of plaintiff's case is reversible error. Delfosse v. United Railways Co., 201 S.W. 860, 862. (3) The court erred in giving plaintiff's instruction No. 1, for the reason it assumed that the car moved, which was a controverted issue in the case. Flannegan 1. Nash, 190 Mo.App. 578, 583; Ganey v Kansas City, 259 Mo. 654, 663.
A. R Taylor and Howard Taylor for respondent.
(1) This case is strictly a case of passenger and carrier, and under the petition and the evidence produced by the plaintiff was rightfully submitted to the jury. (a) The relation of carrier and passenger exists as the result of a contract, either express or implied. Schepers v. Union Depot Ry. Co., 126 Mo. 672; McCarty v. St. Louis & Sub. Ry. Co., 105 Mo.App. 601; Speaks v. Met. St. Ry. Co., 179 Mo.App. 311; Booth on St. Railway Law, section 326; Schaefer v. Railroad, 128 Mo. 64. (b) The act of stopping a street car and receiving passengers thereon, and opening the gate for said purpose, are invitations to would-be passengers to board the car, and are invitations not only to first persons to board the car, but to others who wish to board same. Schepers v. Union Depot Ry. Co., 126 Mo. 665; Barth v. K. C. Elevated Ry. Co., 142 Mo. 549; Devoy v. St. Louis Transit Co., 192 Mo. 210. (c) It is negligence per se for street railway employees to start the car forward while a passenger is in act of getting on same. Cobb v. Railroad, 149 Mo. 136; Barth v. Railroad, 142 Mo. 536; Schepers v. Railroad, 126 Mo. 673; Devoy v. Transit Co., 192 Mo. 210; Booth on St. Railways, sec. 326; Clark's Accident Law, sec. 3, pp. 4, 5, 6. (d) The undisputed evidence in this case shows that the place where plaintiff attempted to board car was a customary stopping place, that car was stopped, that the conductor had opened the entrance door to car, that other passengers had boarded car while plaintiff waited to board same, and that she had one foot on step of car when car started up. This makes an actionable case of negligence, and case was properly submitted to jury. Barth v. K. C. Elevated Ry. Co., 142 Mo. 548; Devoy v. St. Louis Transit Co., 192 Mo. 208; Husbands v. St. Louis Electric Ter. Ry. Co., 196 S.W. 81; Hays v. Met. St. Ry. Co., 182 Mo.App. 396. (2) Instructions No. 1 and No. 2 given on part of plaintiff required jury to find that defendant's servants in charge of car in question stopped said car for the purpose of receiving passengers, including plaintiff thereon, and therefore did require actual knowledge on part of defendant's servants. (3) Instruction No. 1 for plaintiff does not assume that car moved, but required the jury to so find, which they did by their verdict.
This is an action for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant while plaintiff was attempting to take passage upon a street car operated by the defendant in the city of St. Louis. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $ 3000, and the case is here on defendant's appeal.
The petition, after charging that defendant is a common carrier of passengers for hire by street railway, alleges that on December 26, 1914, the defendant's servants in charge of an eastbound street car on Delmar avenue, stopped the same near and west of the west crossing of Delmar and Hamilton avenues, in the city of St. Louis, for the purpose of receiving persons, including plaintiff, as passengers thereupon; that while the car was so stopped for said purpose, plaintiff proceeded to get upon it as a passenger, the door of the rear platform thereof being open to enable passengers to board the car; and that while plaintiff was in the act of stepping upon the step of the car, for the purpose of entering it and becoming a passenger thereon, and before she had reasonable time and opportunity to do so, defendant's servants in charge of the car negligently caused and permitted it to start into motion, causing the car door to close upon the hand and arm of plaintiff's son, who was in the act of stepping upon the step of the car to become a passenger thereon, whereby plaintiff's son was caused to fall against plaintiff, and "by the motion of said car and being so struck by her son in his fall, the plaintiff was thrown and caused to fall from said car to the street," whereby she was injured, as described in the petition.
The answer is a general denial.
Delmar avenue extends east and west and is intersected by Hamilton avenue, extending north and south. On Delmar avenue the defendant, at the time involved, maintained double car tracks upon which it operated street cars for the conveyance of passengers for hire as a common carrier. Plaintiff testified that she left the Park Theatre, situated on the north side of Delmar avenue, a short distance west of Hamilton avenue, about five o'clock P. M. on December 26, 1914, accompanied by her son, a boy then about eleven years of age; that she went to the southwest of Delmar and Hamilton avenues for the purpose of taking passage on one of defendant's east-bound "Delmar-Olive" cars; that an east-bound car on that line was then standing on Delmar avenue immediately west of the west Hamilton avenue crossing, but that finding this car crowded she and her son, together with "an overflow of passengers" consisting of "about seven or eight, or nine possibly," proceeded west to a car standing in the rear thereof. The testimony shows that the entrance at the rear of this second car was about one hundred forty-five feet west of the west crossing on Hamilton avenue, and that the cars were about forty-five feet in length. Consequently these cars were separated by more than a car length. According to plaintiff's testimony a damaged automobile that had been struck by a west-bound car had been "switched" from the north track to the south or east-bound track, and was then immediately behind the car standing at the crossing.
Plaintiff's testimony is to the effect that this rear car was empty, and that when she and her son went to the rear entrance thereof for the purpose of taking passage thereon, they were preceded by a number of persons, "about seven or eight," who entered the car; that she and her son "stood there a while," waiting for those in front of them to get within the car, and then attempted to enter; she had her left foot upon the car step and was reaching for the hand-rail, while her son, who was at her right, was trying to assist her, when the car suddenly started forward and the door closed; and that by reason of the movement of the car her son fell against her and she fell to the ground and was injured; that as she fell her son called to the conductor of the car but did not succeed in attracting his attention; that she was unconscious for a short time, and when she recovered consciousness she was at the south curb of Delmar avenue; that two men, Mr. Wyman and Mr. Chapman, then assisted her, took her to a nearby store, and later took her to her home in an automobile. She further testified that she had "frequently taken the second car back and even the third car back during these matinees;" that there was some ice upon the street at the time, but that it was "ice and dirt ground up together--was more like mud."
One Parker, janitor of a building at the southwest corner of Delmar and Hamilton avenues, testified that upon the occasion in question he "saw a lady in a falling attitude;" that he "got a glance of a woman...
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