Ely v. Southwest Missouri R. Co.

• Decision Date: 07 February 1910
• Citation: 141 Mo. App. 708,125 S.W. 833
• Parties: ELY v. SOUTHWEST MISSOURI R. CO.
• Court: Missouri Court of Appeals

125 S.W. 833

141 Mo. App. 708

ELY v. SOUTHWEST MISSOURI R. CO.

Springfield Court of Appeals. Missouri.

February 7, 1910.

Rehearing Denied February 28, 1910.

1. CARRIERS (§ 280) — DEATH OF PASSENGER — CARE REQUIRED — TEST OF LIABILITY.

Where decedent elected to ride on the platform of a street car when there was plenty of room inside, and was thrown from the car and killed before it reached decedent's transfer point, the test of the carrier's liability is not the rule of care required of a passenger who is leaving the car at his destination, but the care required as to passengers at other points along the line.

2. CARRIERS (§ 280) — DEATH OF PASSENGER — CARE REQUIRED — AS TO PASSENGER OCCUPYING DANGEROUS POSITION.

Where a passenger on a street car, though not at his destination, is passing from the platform down the steps with the knowledge of the motorman or conductor while the car is in motion, it then becomes their duty to exercise a high degree of care in the management of the car, so that the passenger will not be thrown therefrom by any extraordinary movement of the car.

3. CARRIERS (§ 321) — INJURY TO PASSENGER — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

Where deceased, when thrown from a street car and injured, had been riding on the back platform, and had not at any time ridden inside the car, as alleged in the petition, instructions that if, as the car approached decedent's destination, he passed out on the back platform to alight when he reached his destination, and while on the platform, and before the car reached such destination it sustained an unusual jerk by reason of defendant's servants carelessly causing it to be brought to a standstill and then suddenly starting it forward, whereby decedent lost his balance, etc., plaintiff was entitled to recover, were erroneous as inapplicable to the evidence.

4. CARRIERS (§ 303) — PASSENGERS — ALIGHTING FROM CAR.

If a street car passenger is about to reach his destination, and as the car is stopping he proceeds to the platform or steps to alight when the car stops, then if those in charge of the car start it with a sudden jerk, and the passenger thereby sustains injuries, the carrier is liable, but the mere starting of a car with a sudden jerk causing injury to a passenger at a time when those in charge of it do not know, and have no reason to know, that the passenger is about to alight, does not constitute a cause of action.

5. APPEAL AND ERROR (§ 1175) — REVERSAL — VARIANCE — JUDGMENT ABSOLUTE.

Where a judgment for plaintiff was reversed, and it did not appear but that plaintiff might be able to establish a cause of action on a different theory by amendment, judgment absolute would not be rendered because of a variance between the pleadings and proof.

Appeal from Circuit Court, Jasper County; Henry L. Bright, Judge.

Action by Elizabeth M. Ely against the Southwest Missouri Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

McReynolds & Halliburton, for appellant. Elton T. Harris, John B. Cole, A. C. Burnett, and Fred L. Williams, for respondent.

GRAY, J.

This action was instituted by respondent in the circuit court of Jasper county on the 12th day of September, 1908, to recover from appellant the sum of $10,000 on account of the death of respondent's husband, the Reverend Simpson Ely, caused, as the plaintiff claims and alleges, by the negligence of appellant.

The petition alleges that the defendant was at the times mentioned therein a corporation existing by virtue of the laws of this state, and as such was operating a street of electric railroad in the city of Joplin as a common carrier of passengers; that on the 5th day of July, 1908, the said Simpson Ely entered one of defendant's cars and became a passenger thereon, to be carried to Fifteenth street in said city; that the said Simpson Ely on nearing said Fifteenth street passed out to the back platform of said car for the purpose of getting off at his said destination, and that defendant's servants in charge of said car so negligently controlled said car that said Simpson Ely was thrown from the said platform of said car to the street, and received injuries from which he died; that the death of the deceased was caused by the negligence of the servants of defendant running said car, and consisted in bringing said car to a standstill, or almost to a standstill, and then by certain application of the power starting said car forward in a violent, sudden, and unexpected lurch and jerk, thereby causing said Simpson Ely to lose his hold and balance on said car, and to be thrown from said car to the street. The answer admitted that the defendant was a corporation at the time mentioned in the petition, and that, as such, it was at said time operating a street railroad in Joplin as a common carrier of passengers, and that on July 5, 1908, the deceased was a passenger on one of defendant's cars, and denied all the other allegations of the petition. The answer further alleged that the injury was caused solely by the negligence of the deceased in riding on the platform of the car when there was at the time plenty room in the car, and that the deceased either attempted to get off the car when the same was running, and without the knowledge of defendant's servants, or that, through inadvertence or dizziness, he fell from the platform of the car. The trial was before a jury on January 15, 1909, resulting in a verdict in favor of the plaintiff for the sum of $2,000, and a judgment was rendered thereon, from which the defendant appealed to this court.

Main street in Joplin runs north and south through the city. Twentieth street runs east and west, and is in the southern part of the city. Moffett street runs north and south, west of and parallel with Main street. Fifteenth street is five blocks north of Twentieth street, and also runs east and west and parallel with Twentieth street. The defendant at the time of the accident, and for a long time prior thereto, had a car line running east on Fifteenth street from Main street to a point called Villa Heights. On the morning of July 5th the deceased entered one of defendant's cars at Moffett and Main streets. He intended to go east to Main street, then north on Main street to Fifteenth street, and there transfer to the car going east on Fifteenth street. He paid his fare, and received a transfer for the Fifteenth street car. The deceased had been making this trip frequently, and was perfectly familiar with the surroundings. The evidence shows that he remained on the back platform of the car, although there was plenty room inside. He was a man 59 years of age, and weighed about 250 pounds. Just before the car reached Seventeenth street, which was two blocks south of Fifteenth street, the conductor gave a signal to stop the car at Seventeenth street. At the time this signal was given the conductor thought the car was nearing Sixteenth street, which was the next street north of Seventeenth street. The motorman, in obedience to the signal, checked the speed of his car for the purpose of stopping at Seventeenth street. But before the car stopped the conductor, discovering his mistake, gave the signal to go ahead, and which signal was obeyed by the motorman, and the car proceeded without making a stop at Seventeenth street.

There is a conflict in the testimony between the witnesses for the respondent and the appellant as to the management of the car at the time of the accident....