Erny v. Wells

• Decision Date: 16 February 1927
• Docket Number: 25422
• Citation: 293 S.W. 119,316 Mo. 798
• Parties: Catherine Erny, Appellant, v. Rolla Wells, Receiver of United Railways Company of St. Louis
• Court: Missouri Supreme Court

293 S.W. 119

316 Mo. 798

Catherine Erny, Appellant, v. Rolla Wells, Receiver of United Railways Company of St. Louis

No. 25422

Supreme Court of Missouri

February 16, 1927

Motion for Rehearing Denied April 11, 1927.

Appeal from Circuit Court of City of St. Louis; Hon. George E Mix, Judge.

Reversed and remanded.

N Murray Edwards and John V. Lee for appellant.

(1) The pleading and proof created the relation of passenger and carrier. Joyce v. Railway, 219 Mo. 372; Vrooman v. Harvey, 197 S.W. 118; Nolan v. Met. St. Ry Co., 250 Mo. 602; O'Mara v. Transit Co., 102 Mo.App. 202. (2) So considered, instruction numbered seven for defendant was reversible error for the reasons: (a) In submitting a question of law to the jury; (b) being in direct conflict with the main instruction, numbered one, for plaintiff; (c) permitting and allowing the jury to guess at the right or wrong rule; (d) leaving the jury to their own notion of the law to an undisclosed state of facts. Hickey v. Ryan, 15 Mo. 63; Massey v. Tingle, 29 Mo. 437; Jordan v. Hannibal, 87 Mo. 673; Albert v. Bessel, 88 Mo. 150; River Co. v. Warner, 93 Mo. 384; Gurley v. Ry. Co., 93 Mo. 445; Lynch v. Railway, 112 Mo. 420; Howell v. Davis, 236 S.W. (Mo. App.) 889; Seago v. Realty Co., 185 Mo.App. 292. (3) A case which should go to the jury must go under proper instructions; erroneous instructions are presumed prejudicial. Brunswick v. Ins. Co., 278 Mo. 176; Coke Co. v. Ellison, 270 Mo. 645; Jones v. Pulitzer Pub. Co., 240 Mo. 200; Morris v. Railway Co., 144 Mo. 500; Gannon v. Laclede Gas Co., 145 Mo. 502.

T. E. Francis, W. H. Woodward and E. C. Adkins for respondent.

(1) Plaintiff was not a passenger. McCarthy v. Railroad, 105 Mo.App. 596; Speaks v. Metro., 179 Mo.App. 323; Galloway v. K. C. Rys. Co., 233 S.W. 385; Schepers v. Union D. Railroad Co., 126 Mo. 665; Meriwether v. Railroad, 45 Mo.App. 53; Banks v. Ry., 280 Mo. 227. (2) So considered, instruction numbered 7 was a proper instruction. Banks v. Ry., 280 Mo. 227. Also cases supra.

Atwood, J. All concur, except Gantt, J., not sitting.

OPINION

ATWOOD

This is an appeal from a verdict and judgment for defendant in an action for personal injuries. Appellant assigns error in the giving of instruction seven for defendant and instruction eight of the court's own motion.

Plaintiff went to trial on her amended petition, which charged defendant with negligence in the operation of a northbound Bellefontaine street car in the city of St. Louis. The petition alleges that defendant, his agents, servants and employees stopped said car on Eighteenth Street a short distance south of its intersection with Ann Avenue, where plaintiff was standing expecting to board said car and become a passenger, opened the rear door of said street car and thereby invited plaintiff to board said street car through said rear door; that while plaintiff was attempting to so board said car, defendant, his agents, servants and employees in charge of and operating said car "negligently caused suffered and permitted said street car to be put in motion and to move, and negligently caused, suffered and permitted the step of said street car at said door to ascend and fold and said rear door to close, and thereby caused plaintiff to be thrown to the paved street and injured." The petition further charged that defendant, his agents, servants and employees in charge of and operating said street car "negligently failed to have said street car remain stationary for a sufficient length of time to enable passengers and the plaintiff to safely board such street car," in violation of a certain city ordinance; "negligently suffered and permitted said street car to be put in motion while plaintiff was in the act of boarding said street car, without warning plaintiff that said street car was about to move or be put in motion;" negligently caused and suffered said rear door to close "while plaintiff was attempting to board said street car;" "negligently caused, suffered and permitted said step at said rear door to ascend and fold while plaintiff was in the act of boarding said street car;" and that they "knew that plaintiff had started to board said street car through said rear door, and that she was then and there in a place of danger of being injured if said car were put in motion, and negligently failed to use the highest degree of care which a very careful person would have used under like or similar circumstances, to prevent said car from being put in motion and to have avoided throwing plaintiff to the street and injuring her."

Defendant's answer was a general denial, coupled with a plea of contributory negligence, and plaintiff replied with a general denial of the allegations set up in the answer.

We gather from the evidence adduced in behalf of plaintiff that at the time she received the alleged injuries she was about 31 years of age, resided at 2208 South Eighteenth Street, St. Louis, and earned from twenty to twenty-one dollars each week; that on the 24th day of May, 1922, about 7:30 A. M., plaintiff was standing at the curb on the east side of South Eighteenth Street, at Ann Avenue, waiting for a northbound Bellefontaine street car; that a man was standing beside her on the curb at the time; that a Cherokee car was standing just south of the street intersection taking on air when the Bellefontaine car approached from the south and stopped on the same track a few feet to the rear of the Cherokee car; that the conductor of the Bellefontaine car knocked on the window and "motioned for us to come to get on the car;" that the man preceded her to the car and when the conductor opened the rear door got aboard; that she had her right foot on the step and her left foot just on the edge of the platform when the car sprang forward with a sudden jerk, and she was thrown to the street in a twisted position and dragged; that with the assistance of her daughter she returned to her home, and that the street car conductor after a time followed plaintiff and her daughter into the house; that previous to the accident plaintiff had been in the habit of riding the same street car nearly every morning as she went to work at the same hour; that she did not intend to board the Bellefontaine street car where it was stopped, because, as a general rule, she got aboard "right down where the Cherokee car always stops," but when the conductor knocked on the window and motioned "for us to come on" both plaintiff and the man standing there with her walked toward the car and he got aboard; that her daughter was standing there "right on the sidewalk." Plaintiff's daughter Florence testified that she had accompanied her mother from the house and saw what happened; that she and her mother "stood at the curb along with a man" standing next to them, and that the Cherokee car at the time was taking on air and the Bellefontaine car coming up; that the Bellefontaine car stopped behind the Cherokee car; that the conductor knocked on the window and by that "drew the attention of my mother and this man and myself;" that the man walked in front and preceded her mother on the street car; that she saw her mother in the act of attempting to board the car and then saw her fall to the street and dragged; that she helped her mother to her feet and assisted her into the house; that shortly afterward the conductor of the Bellefontaine car came into the house. Aside from the medical proof there was no other testimony offered by the plaintiff.

Counsel for respondent thus sums up the evidence given in behalf of defendant:

"The defendant's evidence showed that this northbound Bellefontaine car stopped within a few feet of the rear of the Cherokee car, which was stopped at Eighteenth and Ann Avenue, taking air; that this Bellefontaine car was very crowded, both in the body of the car and on the rear platform; that while this car was stopped three men came to the rear door of this car and asked the conductor to open the door, calling him by name; the conductor opened the rear door for them to board the car, and these three men boarded the car, and then the conductor closed the rear exit door; at this time plaintiff was not in sight; the crowded condition of the back platform prevented the conductor from completely closing the rear exit door, and when the rear doors were from six to eight inches of being closed, the conductor, seeing he could not close the door any further, owing to the crowded condition of the platform, gave the signal to the motorman to go ahead, and the car started. The conductor denied knocking on the window or beckoning anyone to board his car. Other witnesses on the car stated that they did not see the conductor at any time knock on the window or beckon or motion anyone on the street or sidewalk to board the car; that plaintiff was not seen by anyone when the door was opened admitting these three gentlemen, and that when...