Fillingham v. St. Louis Transit Co.
| Citation | 77 S.W. 314,102 Mo.App. 573 |
| Parties | FILLINGHAM, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Decision Date | 17 November 1903 |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.
AFFIRMED.
Judgment affirmed.
Boyle Priest & Lehmann and Crawley, Jamison & Collett for appellant.
(1) Defendant was entitled to judgment on the statement of facts made by plaintiff's counsel in opening his case to the jury. In such cases it is the duty of the court to stop further proceedings and enter up judgment for the defendant without waiting for plaintiff to introduce proof in support of his counsel's confession that he had no cause of action. Oscanyan v. Arms Co., 103 U.S. 261; Butler v. National Home, 144 U.S. 65; Pratt v. Conway, 148 Mo. 291. (2) The circuit court erred in refusing defendant's instructions in the nature of a demurrer to plaintiff's evidence. Plaintiff's own testimony is such as to preclude her recovery. It appears from her petition that along the full length of the car was a running-board for the use of passengers, and her own evidence shows that there was no obstacle in the way of her walking along this running-board to the rear end of the car, where she could have alighted in safety. Under such circumstances, the carrier is not liable. Young v. Railway, 93 Mo.App. 267; Railway v. Friel (Ky.), 39 S.W. 755; Lee v. Railway, 65 N.E. 822; Bridges v. Railroad, 6 Q. B. L. R. 377; Signer v. Railroad, L. R. 3 Exch. 150; Fish v. Ferry Co., 4 Pa. 103; Eckard v. Railway, 70 Iowa 353; Railway v. Peters, 80 Ind. 168. (3) Plaintiff's first instruction is bad, for a number of reasons. The chief and most glaring vice is that the court authorizes a verdict for plaintiff if the agents and servants of defendant managing the car "failed to exercise the utmost care, skill and vigilance," without defining in this or in any other instruction what is meant by "utmost care, skill and vigilance." As the instruction stands it calls for the utmost conceivable care, skill and vigilance, which is reversible error. Dougherty v. Railroad, 97 Mo. 647; Smith v. Railway, 108 Mo. 243; Jackson v. Railway, 118 Mo. 225; Freeman v. Railway, 95 Mo.App. 94.
Judson & Green for respondent.
(1) An attorney's opening statement to the jury, being merely an outline of the evidence which he expects to educe in the progress of the trial, and being made upon the spur of the moment, does not perform the office of a pleading. Butler v. National Home, 144 U.S. 65; Pratt v. Conway, 148 Mo. 291; Russ v. Railroad, 112 Mo. 45; 1 Thompson on Trials, sec. 267. (a) The opening statement of counsel for respondent herein contains no such solemn admission. (b) By subsequently offering evidence in its own behalf, appellant waived the error, if any there was, which the court committed in overruling its demurrer at the close of said opening statement. Leonard v. Railroad, 57 Mo.App. 366; Sauter v. Loveridge, 103 Mo. 615; Gale v. Foss, 47 Mo. 276. (2) The petition in this case is not open to the objections urged by appellant. It alleges specifically, and in apt and appropriate language, the negligence of appellant in failing to stop its car at a place suitable for respondent to get off and in failing to assist her in alighting therefrom. Weaver v. Harlan, 48 Mo.App. 319; Wright v. Radcliffe, 61 Mo.App. 257; Lingenfelder v. Ins. Co., 19 Mo.App. 252. A mere general allegation of negligence is sufficient upon objection to introduction of evidence made at the trial for the first time. Roberts v. Walker, 82 Mo. 200; Loyett v. Wolff, 45 Mo.App. 489; Young v. Iron Co., 103 Mo. 324. (3) Under all the evidence, the question of respondent's contributory negligence was undoubtedly for the jury. Fetter on Carriers of Pasengers, sec. 147; Talbott v. Railroad, 72 Mo.App. 291; Pool v. Railroad, 25 L. R. A. 744; Edwards v. Railroad, 94 Mo.App. 37; McLane v. Railroad, 32 S.W. 776; Brodie v. Railroad, 24 S.E. 180; Railroad v. Usry, 82 Ga. 54; Cartwright v. Railroad, 52 Mich. 606; Hutchinson on Carriers, sec. 615, p. 728; Jackson v. Railroad, 29 Mo.App. 495; Woller v. Railroad, 83 Mo. 608; Loyd v. Railroad, 53 Mo. 509; McDonald v. Railroad, 88 Iowa 305; Foy v. Railroad, 18 C. B. (U.S.) 225; Painter v. Railroad, 53 Kan. 414; Van Asher v. Railroad, 35 Hun 590; McKimble v. Railroad, 139 Mass. 542; Lang v. Railroad, 81 Tex. 253; Johnson v. Railroad, 11 Minn. 296; Hinshaw v. Railroad, 118 N.C. 1047. (4) The stopping of the car at this point, the calling of the station by the conductor, and his holding the car and waiting for respondent to get down, amounted to invitation to her to alight at this place, and in the absence of any notice or warning she had a right to assume that it was a safe and suitable place for that purpose. McGee v. Railroad, 92 Mo. 208; Robson v. Railroad, L. R. 2 Q. B. Div. 85-88; Leslie v. Railroad, 88 Mo. 50; Edwards v. Railroad, 94 Mo.App. 37; Railroad v. Smith, 92 Ala. 237; Railroad v. Burk, 96 Ind. 346. (5) Respondent's first instruction correctly declares the law. Lemon v. Chansler, 68 Mo. 340; Furnish v. Railroad, 102 Mo. 438; Clark v. Railroad, 127 Mo. 208; Sharp v. Railroad, 114 Mo. 101; Powers v. Railroad, 60 Mo.App. 481; Smith v. Railroad, 108 Mo. 249; Schaefer v. Railroad, 128 Mo. 64. The very language used in this instruction, or even stronger language, has frequently been approved by our appellate courts, when applied to a similar state of facts. Lesinsky v. Great West. Dispatch, 13 Mo.App. 576; Barclay v. Railroad, 148 Mo. 124; Otto v. Bent, 48 Mo. 33; Jackson v. Railroad, 118 Mo. 199.
1. The point is made in this case, which is one to recover damages for personal injuries, that the petition is fatally defective in failing to show any connection between the negligence charged against the defendant and the injuries to the plaintiff. To deal with that point a synopsis of the petition will be given. After charging that the defendant owns and operates an electric railway in the city of St. Louis and northwardly therefrom through St. Louis county to Creve Coeur lake, the petition states that the plaintiff was heretofore a passenger on one of the defendant's cars traveling over said county line; that the car was an open one with a footboard on either side for the use of passengers in entering and leaving it; that one of the regular stations on the line for receiving and discharging passengers was at Woodson road, a wagon road intersecting the railway three or four miles west of the city limits; that at said station defendant maintained an elevated wooden platform for the safety and convenience of passengers in entering and leaving its cars, which platform was located on the north side of its track and immediately west of Woodson road and was known as Woodson road station; that plaintiff notified the conductor of the car she was on of her desire to leave it at Woodson road and that it was the duty of the carmen to stop opposite said wooden platform for her to alight; but that they carelessly ran the car beyond the platform, across Woodson road, and brought it to a stop some distance west of both the platform and the road at a place where the ground was three or four feet below the running-board of the car from which passengers had to step in alighting, and where the surface of the ground was rough; that when the car came to a stop at that place the conductor carelessly called the name of said station and waited for plaintiff to alight without having the car returned to the platform and without assisting or offering to assist her; that plaintiff thereupon attempted to step carefully from the railing of the car and in doing so, by reason of the great distance from the railing to the ground underneath, and on account of the uneven surface of the ground, fell and was severely injured. In addition there is an averment as to the extent of her injuries. The testimony for the plaintiff went to prove the truth of everything alleged.
The objection made to the sufficiency of the petition is that there was no averment that the place where the car stopped was dangerous for an alighting person. It is true the adjective "unsafe" or "dangerous" is not used in the petition, but the description of the spot shows that it was an inconvenient place, necessitating an awkward descent from the footboard. According to the petition, the surface of the ground was three or four feet from the footboard of the car, and was, moreover, rough and liable to cause her to fall. It is charged, besides, that there was a platform where it was customary to let passengers off and that instead of stopping the car at the platform, the carmen ran past it, then stopped opposite low ground, the conductor called out her station and permitted her to get off without assistance or remonstrance. The stated acts of the defendant's employees in charge of the car were negligent acts and they are pleaded as the cause of the injury to the plaintiff; so the assignment against the sufficiency of the petition is overruled.
2. Error is assigned because the circuit court refused to nonsuit the plaintiff on the opening statement made by her counsel. That statement was not a solemn admission in court of facts material to the case, but was a mere recital of what facts counsel expected the evidence would disclose. Such a statement to the jury is intended to help them grasp the bearing of the evidence on the issues and ought to be truthfully given. But the law in this State does not authorize the nonsuit of a party on a statement of anticipated proof which, perchance, contains something that might, if established by evidence, result in a nonsuit. Parties are bound by the admissions of their counsel during trial, of facts material to...
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