Evers v. The Wiggins Ferry Company
| Citation | 92 S.W. 118,116 Mo.App. 130 |
| Parties | EVERS, Respondent, v. THE WIGGINS FERRY COMPANY, Appellant |
| Decision Date | 12 December 1905 |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
J. E McKeighan, Horatio D. Wood and Wm. R. Gentry for appellant.
The plaintiff is not entitled to recover. (a) The evidence showed only one cause which produced the accident, viz., the conduct of the passengers, including plaintiff. The plaintiff tells a story which is so grossly improbable as to show that it is unworthy of belief. He claims that he was told by the collector to go where he went. When the officers of the boat were giving orders to everybody to stay away from the roof shutting the doors and almost fighting to keep people down from there, it is incredible that they should invite plaintiff to go there. But even if it be conceded that they did allow him to go there, and if he is thereby relieved of contributory negligence, they did all in their power to keep the crowd away. That it is negligence on the part of a passenger to attempt to ride in a place not intended for the carriage of passengers and in violation of the rules or orders of the carrier is well established. Higgins v. Railroad, 36 Mo. 418; Chaney v. Railroad, 176 Mo. 598; Railroad v. Jones, 95 U.S. 439; Aufdenberg v. Railroad, 132 Mo. 565; Tully v. Railroad, 41 Mo.App. 432; Railroad v. Schumacher, 152 U.S. 77; Hunt v. Railroad, 14 Mo.App. 160-171; Seymour v. Railroad, 114 Mo. 266; Wills v. Railroad, 129 Mass. 351; McCauley v. Railroad, 93 Ala. 356; Macon v. Railroad, 38 Ga. 409; Brown v. Scorboro, 97 Ala. 316; Steamboat Co. v. Brockett, 121 U.S. 637; Railroad v. Ball, 53 N. J. L. 283; Down v. Railroad, 28 W.Va. 732; Railroad v. Kelsey, 180 Ill. 530; Summons v. Steamboat Co., 97 Mass. 361; Dodge v. Boston & C. Co., 148 Mass. 213. The court erred in giving improper instructions. (a) The court erred in giving instruction No. 1, at the request of the plaintiff. May v. Crawford, 150 Mo. 504; Link v. Westerman, 80 Mo.App. 592; Hohstadt v. Davis, 50 Mo.App. 240; Evans v. Railroad, 16 Mo.App. 522. (c) Instruction No. 3, given at the request of the plaintiff, is incomplete and erroneous. (d) Moreover, the instructions are in conflict with each other. It is a well-established rule of law, which is recognized in many decisions in this State that where the court gives to the jury instructions which are conflicting so that the tendency is to confuse the jury, the losing party is entitled to a new trial. Dlauhi v. Railroad, 105 Mo. 645; White v. Ins. Co., 93 App. 282; Imp. Co. v. Ritchie, 143 Mo. 587; Land & L. Co. v. Tie Co., 87 App. 167; Wallis v. Westport, 82 Mo.App. 522.
Lee Meriwether for respondent.
The plaintiff is a youth between thirteen and fourteen years of age and sues by his next friend. The defendant is a corporation engaged in running a line of ferry boats across the Mississippi river, between St. Louis, Missouri, and East St. Louis, Illinois, carrying both passengers and freight. On May 1, 1903, and for some days prior thereto, the United States gunboat, Nashville, was anchored in the river between St. Louis and East St. Louis. Defendant issued circulars inviting people to take passage on its ferry boats for the purpose of viewing the gunboat, Nashville. May 1, 1903, was on Sunday. A considerable number of people, including the plaintiff, paid their fares at the St. Louis wharf and took passage on the defendant's ferry boot, Church, and were carried to East St. Louis. The plaintiff and other passengers aboard did not go ashore on arrival of the Church at the East St. Louis wharf, but paid their fares for the return trip. When the Church left the East St. Louis wharf there were thirty or thirty-five passengers on the hurricane deck. This number was increased to from seventy-five to one hundred by the time the boat reached the middle of the river and as it passed the gunboat Nashville they rushed across the hurricane deck to the side next the gunboat to get a better view. Their concentrated weight caused a portion of the hurricane deck (a space about nine feet wide and thirty-five feet long) to break through, precipitating the plaintiff and other passengers to the deck below. As a result of the fall plaintiff received a compound fracture of one of his legs. He sued for this injury and recovered a judgment for $ 2,750, from which defendant appealed to this court.
The evidence shows that the ferryboat Church had three decks, designated a lower, boiler and hurricane decks, inclosed by railings. Benches were placed around the lower deck for the purpose of accommodating passengers with seats. The boiler deck was also provided with seats for the accommodation of passengers and had a cabin for their use. The upper deck or roof had no provision whatever for seating passengers and had only an ornamental railing, about six inches high, around it. It was supported by 2x2 oak stanchions and upon it was the pilot house. The stairway leading from the boiler deck to the hurricane deck was narrow and very steep and is described as being "like a ladder," the steps having no backing. The opening at the top of this stairway was closed by two flat doors. These doors, however, were required to be kept open when passengers were aboard by a United States statute, read in evidence.
Plaintiff testified that he was on the boiler deck, at the top of the stairway, when he paid his fare for the return trip to St. Louis; that he paid his fare to a collector, who came down from the hurricane deck and who told him at the time he took the fare, to go up to the roof; that he then went to the roof, saw other passengers there, walked around for a few minutes and then went over to the side which fell in; that no one ordered him to go below nor did he hear such an order given by any one.
A number of witnesses for the plaintiff testified that they were on the hurricane deck, paid their fare there and remained there until the deck fell in; and that they heard no one give an order to those on the hurricane deck to go below. Among the passengers on the hurricane deck, the evidence shows, were a number of women and children. Some of these women testified that they were not asked to go below; that they paid their fare on the hurricane deck and heard no order given by anyone for the passengers to go below.
On the part of the defendant, the evidence is that the pilot of the boat, while it was tied up at the East St. Louis wharf, persuaded all but thirty or thirty-five of the people then on the hurricane deck to go below; that those who remained refused to go; that when he had persuaded as many as he could to go below, he closed the doors over the stairway and then he and a bystander stood on them for a few minutes to hold them down to keep passengers from coming up; that a moment before the boat pulled out he placed a whiskey barrel two-thirds full of water on the doors over the stairway and then went into the pilot house where his duties called him. Witness further testified that as soon as the boat started on the return trip, parties from below pushed against the doors at the head of the stairway, overturned the barrel of water, broke the doors from their hinges and then rushed upon the roof; that about that time the captain of the boat came up and repeatedly ordered the people to go below saying that the hurricane deck was "no place for passengers," but that only a few paid any heed to the order.
The captain testified that he gave the order and repeated it two or three times in a tone of voice loud enough to be heard by all on the hurricane deck. His evidence and that of the pilot is corroborated by a number of passengers who were on the hurricane deck. Defendant's evidence also is that no fares were collected on board the boat at all and that no one but the captain and pilot had authority over the passengers or authority to direct them where to sit or stand on the boat.
1. Defendant offered a demurrer to the evidence which the court refused. This ruling is assigned as error. The evidence for defendant shows that the hurricane deck was not constructed or fixed up for the purpose of receiving passengers thereon and it is neither alleged nor shown by the evidence that passengers were habitually carried on the hurricane deck, with the knowledge and consent of the officers of the boat. But the plaintiff's evidence is that he was told by defendant's collector (a man apparently clothed with authority) to go upon the roof, and that he went there in obedience to the order and, when he reached there, found a great many other passengers on the roof. It is also shown by his evidence that no officer of the boat ordered or warned him to go below, and if such an order was given, generally, to passengers on the hurricane deck, he did not hear it. On this evidence it cannot be held that plaintiff was wrongfully upon the hurricane deck, notwithstanding the fact it was not constructed or designed for the accommodation of passengers. As to the plaintiff, under the facts as shown by his evidence, the hurricane deck was the place specially set apart by defendant for his accommodation, and...
To continue reading
Request your trial