Fortune v. Missouri R.R. Co.

• Decision Date: 19 April 1881
• Citation: 10 Mo.App. 252
• Parties: MARY FORTUNE, Plaintiff in Error, v. MISSOURI RAILROAD COMPANY, Defendant in Error.
• Court: Missouri Court of Appeals

10 Mo.App. 252

MARY FORTUNE, Plaintiff in Error,

v.MISSOURI RAILROAD COMPANY, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Apr. 19, 1881.

1. In the absence of contributory negligence, a carrier of passengers is liable for personal injuries resulting directly from its violation of a city ordinance passed for the safety of passengers.

2. Whether the act of stepping from a street-car when slowly moving is contributory negligence is a question for the jury under all the circumstances of the case.

ERROR to the St. Louis Circuit Court, ADAMS, J.

Reversed and remanded.

A. R. TAYLOR, for the plaintiff in error: The court erred in excluding the evidence. The evidence clearly showed that plaintiff's injury was directly caused by the conductor not being at his post to stop the car for plaintiff, leaving her to get off the car while in motion, in direct violation of the ordinance. This was negligence per se on the part of defendant.--1 Thomp. on Neg. 558; 2 Thomp. on Neg. 1232; Salisbury v. Horchenroider, 106 Mass. 458; Karle v. Railroad Co., 55 Mo. 476; Owens v. Railroad Co., 58 Mo. 387; Evans v. Railroad Co., 62 Mo. 58; Maher v. Railroad Co., 64 Mo. 276. The ruling of the court in giving the peremptory instruction, was palpable error upon the evidence introduced. A strong case was made.-- Buesching v. Gas-Light Co., 72 Mo. 219; Kelly v. Railroad Co., 70 Mo. 664. When a passenger steps from a car while in motion slowly, and sustains injury, it is a question of fact for the jury whether such act by the passenger is contributory negligence.-- Wyatt v. Railroad Co., 55 Mo. 485; Loyd v. Railroad Co., 53 Mo. 509; Burham v. Railroad Co., 56 Mo. 338; Doss v. Railroad Co., 59 Mo. 37.

LEE & CHANDLER, for the defendant in error: The municipal corporation of the city of St. Louis could not directly impose a civil liability upon the defendant which did not rest upon it by charter or the general law, and it cannot do it indirectly by penalty.-- Philadelphia R. Co. v. Irvin, 9 Cent. L. J. 14; Heeney v. Sprague, 2 R. I. 462; Brown v. Railroad Co., 22 N. Y. 109; Taylor v. Griswold, 2 Green L. 222; Philips v. Wickham, 1 Paige, 590. The act of the plaintiff in jumping from the car while in motion was the proximate and, in a legal sense, the sole cause of her injury.-- Nelson v. Railroad Co., 68 Mo. 596; Ginnon v. Railroad Co., 3 Robt. 32.

BAKEWELL, J., delivered the opinion of the court.

This is an action against a corporation running streetcars in St. Louis as a common carrier of passengers, for damages for injuries to a passenger.

The petition alleges that plaintiff was a passenger on defendant's line; and that defendant, in consideration of the payment of fare by the plaintiff, agreed with her to have the car properly manned with a conductor to stop the car at plaintiff's destination, and allow her to alight safely; that such conductor was not on the car; and plaintiff, by reason of his absence, was compelled to leave the car when in motion, and was thereby thrown down, and that her thigh was broken. The petition further says that, by an ordinance of the city, conductors are required, under a penalty, not to allow ladies or children to leave or enter cars while in motion, and that the violation of this ordinance caused the injury.

The defence sets up that the car was furnished with a proper conductor, who had temporarily left the car for his meal; that this was the custom; and sets up contributory negligence of plaintiff.

The evidence for plaintiff tended to show, that she resided a block or two from the western terminus of the line; that the car passed about half a block beyond her residence, without her notice; that one conductor was gone; that the car was going slowly; that she pulled the bell-rope; that the car did not stop, but was going so slowly that she thought she could safely step from the platform step to the street, and that she did so while the car was still moving; that she fell in consequence, and broke her thigh. She did not hear the bell ring, but she is deaf. She believed that she rang the bell. From the cross-examination of this witness and of other witnesses for the plaintiff, a reasonable doubt arises whether the strap or rope that she pulled communicated with the bell, or whether it was a strap hanging in the car for another purpose, which she pulled by mistake.

Plaintiff introduced an ordinance of St. Louis regulating street railways, which provides that conductors shall not allow ladies or children to leave or enter the car while the same is in motion, and prescribes a penalty for violating any provision of the ordinance. At the close of plaintiff's case, the court sustained a demurrer to the...