Fels v. East St. Louis & S. Ry. Co.

• Decision Date: 03 September 1921
• Docket Number: 5731.
• Citation: Fels v. East St. Louis & S. Ry. Co., 275 F. 881 (8th Cir. 1921)
• Parties: FELS v. EAST ST. LOUIS & S. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

275 F. 881

FELS v. EAST ST. LOUIS & S. RY. CO.

No. 5731.

United States Court of Appeals, Eighth Circuit.

September 3, 1921

Rehearing Denied December 16, 1921.

Shepard Barclay, of St. Louis, Mo. (Louis J. Portner, of St. Louis Mo., on the brief), for plaintiff in error.

Robert A. Holland, Jr., of St. Louis, Mo. (Thomas G. Rutledge and J M. Lashly, all of St. Louis, Mo., on the brief), for defendant in error.

Before CARLAND, Circuit Judge, and LEWIS and COTTERAL, District judges.

LEWISDistrict Judge.

This action was brought to recover damages for personal injuries received by Fels while he was attempting to get aboard one of defendant's street cars, caused, as he alleged, by the sudden starting of the car.There was verdict and judgment against him.He saw one or two persons standing at a street crossing in East St. Louis as if they were waiting for an approaching car, and believing it would stop he ran to catch it.It did stop and those who were waiting got aboard.As Fels ran in the direction the car was going he left the sidewalk and went into the street and the car passed him, so that he was behind it when it stopped.But he continued to run and seized the handle at the entrance which was on the side of the car near its rear end, with one hand, as it was about to start, or after it had started, was thrown violently to the ground by the motion of the car, and received the injuries of which he complains and for which the jury by its verdict found the defendant not liable.

There was no evidence that Fels was seen by the conductor or motorman on the car.The car was not identified, it went on and it negatively appears that Fels was not seen by them.The defendant met the point by calling the motormen and conductors on three cars that passed nearest the time fixed by Fels as the time when the accident occurred.Each of them testified that he did not see Fels and knew nothing about the accident.These cars followed each other at intervals of fifteen minutes on regular schedule.Fels objected to the motormen and conductors on the three cars testifying, and assigns as error the action of the court in permitting them to do so.This contention seems to be wholly without merit.Apparently it was the only way open to the defendant to show, negatively though it be, that the motorman and conductor did not see Fels and did not know that he desired to take passage or that he had attempted to do so.The other errors assigned and relied on relate to the giving of instructions and refusal to give others.

All of the facts describing the occurrence, including those already stated, were obtained from Fels and his two witnesses, the latter looking on at some distance from the car.He testified that he saw but one waiting passenger who got aboard while he was thirty or forty feet away, that the car did not start until he had run that distance, that he was running right next to the track.

'When I got there I just got hold of the handle bar and was coming up with my foot, and that is as far as I know.I fell; they throwed me over, and the car went on.* * * I grabbed the handle of the car and was coming up with my foot, but whether I got my foot on the steps or not I don't know.* * * I never got on there, I don't think.* * * There is a bruised place on my leg here which must have struck the step.'

One of his witnesses testified that two persons boarded the car, that the car was standing still when Mr. Fels got hold of the handle bar, that when the last passenger got on the car Fels was five or six feet away, still running after it, and the car seemed to start just as Fels got hold of the handle bar.The other one, that only one person boarded the car, that Fels came down the road running and grabbed hold of the right handle bar, and just as he did he fell flat to the ground.

'He grabbed and got hold of the right handle bar, and I couldn't say now whether his foot was on or not, but down he went.* * * Q.And then you say just as he grabbed it the car started and he fell, is that right?A.Yes, sir.'

It thus appears that when the car stopped Fels was not waiting to enter it, was thirty or forty feet behind it and running to catch it, and did not reach the entrance at the side of the car until it was starting, or an instant before that, and that no one in charge of the car saw him.He must have come up to the entrance suddenly and grabbed the handle bar hurriedly, and was instantly thrown down, before he could get his foot on the step.The situation thus presented induced the court to state in its charge the principles of law applicable to the relation of carrier and passenger, and the duty of the former to the latter.

Was there any evidence, allowing to it every reasonable inference favorable to plaintiff that could be drawn, on which the issue of fact thus submitted could rest?We think not.The place of the accident was not at a station maintained by the defendant for the reception and discharge of passengers, but at a street crossing on a public thoroughfare.We appreciate the difficulty under such circumstances in determining when the relation of carrier and passenger begins, and what acts of the parties are sufficient to create it, as was pointed out in Schepers v. Union Depot R. Co.,29 S.W. 712, 126 Mo. 665.But it was there said, in recognition of the general rule:

'Yet one test applies alike to all, and that is, the relation can only be created by contract between the parties, express or implied.There must always be an offer and request to be carried on one side, and an acceptance on the other.'

The principle is stated again in Purple v. Railway Co.,114 F. 123, 51 C.C.A. 564, 57 L.R.A. 700, in this way:

'A contract is indispensable to the relation of carrier and passenger.* * * This contract of carriage may, it is true, be express or implied, but if it does not exist in either form the relation of carrier and passenger cannot have been created.'

And in O'Mara v. Transit Co.,102 Mo.App. 202, 76 S.W. 680:

'The right of a person to carriage as a passenger on a street car rests on a contract, the essential ingredients of which are that the person must signify his intention to take passage, either by words or conduct, and the car men must assent, by words or conduct, to his becoming a passenger.'

We are not unmindful that it does not take much to raise the implied contract, and that about all street car travel is under obligations of that sort; and so it is...