Gage v. St. Louis Transit Co.

• Decision Date: 26 February 1908
• Citation: 109 S.W. 13,211 Mo. 139
• Parties: GAGE v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

109 S.W. 13

211 Mo. 139

GAGE v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

February 26, 1908.

Rehearing Denied April 1, 1908.

1. CARRIERS—INJURIES TO PASSENGER — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

It is not negligence as a matter of law for a passenger on a street car to protrude a portion of his body out of the car in which he is being carried, but such question is one of fact to be determined by the jury under proper instructions from the court, the test being whether or not an ordinarily prudent person would do the same act under the same or like circumstances.

2. SAME — NEGLIGENCE OF CARRIER — QUESTIONS FOR JURY.

In an action for the death of a passenger on a street car who was a stranger in the city in which the cars were operated, and unfamiliar with the cars and their operation, and who was struck while protruding his head out of the car in which he was riding by a car on the other track going in the opposite direction, whether or not defendants were negligent in operating the street cars with a space of only six inches between them in passing each other with unguarded openings was a question for the jury.

3. SAME — NEGLIGENCE OF CARRIER'S SERVANTS.

Where a conductor on a car on which a passenger was killed by being struck by a car on the adjacent track, going in the opposite direction, saw the passenger on the back platform in distress protruding his head outside of the car and knew that the passenger was oblivious of the danger and also knew of the dangerous juxtaposition of the cars passing on the other track, he was negligent in not warning the passenger of the approaching and impending danger, from being struck by a car on the other rack, in time to have averted the danger.

4. EVIDENCE — ADMISSIBILITY — MATTER OF COMMON KNOWLEDGE.

In an action for death of a passenger caused by his being struck by a car on the adjacent track going in the opposite direction from the one in which he was riding while protruding his head outside of the car, evidence that street cars while in motion will rock and sway from side to side on account of the inequalities of the track is inadmissible, such fact being a matter of common knowledge as to which the jurors have knowledge equal to that of any witnesses who might testify upon the subject.

5. CARRIERS — INJURY TO PASSENGER — EVIDENCE.

Evidence as to whether the surface of the rails and tracks at the point of the injury were even or uneven was admissible.

6. SAME.

A passenger on the platform of a street car has the right to presume that the tracks and cars are properly constructed, and that there are no hidden dangers connected with their operation.

7. SAME—QUESTION FOR JURY.

In an action against a street railway company for the death of a passenger caused by his being struck by a car on the adjacent track going the opposite direction from the one on which he was riding while protruding his head outside of the car, it was error to strike out a part of the petition alleging that defendant was negligent in failing to construct and maintain guard railings on the back platform of the car of sufficient height to protect passengers from passing cars, since such question was a question of fact for the jury to determine.

8. APPEAL—ABSTRACT OF RECORD — MATTERS SHOWN BY — OBJECTIONS — TECHNICAL DEFECTS.

An objection that the abstract of record does not properly show that a bill of exceptions was timely filed in the court below will not be sustained where the objection is devoid of all substantial merit, and rests only upon a mere technicality.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Mrs. Henry C. Gage against the St. Louis Transit Company. From a judgment of nonsuit, plaintiff appeals. Reversed and remanded.

The plaintiff instituted this suit in the circuit court of the city of St. Louis, on the 18th day of November, 1904, against the defendant, to recover the sum of $5,000 damages for the alleged negligent killing of her husband, Henry C. Gage. The petition in substance alleges that plaintiff was a resident of the city of Louisville, state of Mississippi, and that she was the widow of H. C. Gage, the deceased, who during his lifetime was also a resident of Mississippi; that on the 8th day of October, 1904, the deceased was in the city of St. Louis, visiting the World's Fair; that when on a Market street car, going west, en route to the World's Fair grounds, the deceased became sick at his stomach, and left his seat in the car and went to the back platform thereof, for the purpose of vomiting; that in the act of vomiting he placed his head over the railing of the back platform of the car next to the south track, and that while he was in such position, and in the act of vomiting, another car of the defendants on the said south track, going east, passed said car on which deceased was riding, and negligently struck him in the head, causing him injuries from which he died. The acts of negligence charged are that the conductor on said car was guilty of carelessness in not warning the deceased of the danger in placing his head out of said car on the back platform thereof, from passing cars; that the said conductor saw the deceased at the time of the accident, and failed to notify and warn him of his danger. Another act of negligence charged is that the defendants were guilty of carelessness in failing to construct and maintain the guard railing on the back platform of said car, on the side next to the south track, of sufficient height to protect passengers from passing cars. And it is alleged that said guard railing on the back platform of said car was not constructed of sufficient height to defend passengers from passing cars. Another act of negligence charged is that the defendants were guilty of carelessness in constructing and maintaining the double tracks, on which its cars were operated, at the place where the injury occurred, so close to each other, and their cars of such width, that said cars going in opposite directions on said tracks could not pass each other without danger to passengers. It is finally alleged that from the effects of the injuries plaintiff's husband died on the 12th day of October, 1904, at the City Hospital, in the city of St. Louis, and plaintiff claims damages in the sum of $5,000. A motion was made by the defendant to strike out that part of plaintiff's petition which charged the defendants with negligence in failing to construct and maintain guard railings on the back platform of said car, of sufficient height to protect passengers from passing cars. The trial court sustained this motion, and struck out that part of plaintiff's petition, to which action of the court in so ruling plaintiff duly excepted. Thereafter, on April 3, 1905, plaintiff filed her second amended petition, which sets out substantially the same acts of negligence as the first amended petition excepting the portions stricken out on motion. The defendant, the United Railways Company, filed an answer of general denial to the second amended petition; the St. Louis Transit Company, in its answer, stated that the injury sustained by the deceased was caused by his own negligence, in extending his head over the side of the car, next to the other track on which cars were being operated in opposite direction from the one on which the deceased was riding. On the issues thus made the cause was tried on the 27th day of May, 1905, before the Honorable Warwick Hough, and a special jury, and resulted in plaintiff taking an involuntary nonsuit, with leave to file a motion to set the same aside. The said motion was filed at the proper time, and was overruled by the court, and thereafter the plaintiff by proper steps has perfected her appeal to this court. In order to sustain the issues presented by the pleadings, plaintiff introduced the following testimony:

John Geekie, a witness for plaintiff, testified that he was a passenger on the Market street car, on which Gage was killed, and saw the accident. That he was standing on the back platform; that he saw Gage, who was a passenger on the car, sitting about the center of the car; that he got up and walked out on the back platform, appeared to be sick, and leaned over the side railing and began to vomit; that he straightened up and leaned against the back of the car; remained in this position a few minutes, when he leaned over and began to vomit again, and just at that instant the other car struck him; that the conductor was standing on the back platform just behind him; that the car stopped when it got up to the crossing, and he and the conductor picked the deceased up; that the east bound car did not stop. The sort of car on which they were riding was one of the large new cars that the transit company had just acquired. That the back platform had two iron bars across it. That the cars used on the line at the time of the accident were the same as the cars used now. When Gage came out of the car witness was leaning up right against the iron bar. The conductor was on the north side of the car just behind witness looking west. That the railing on the back platform was 3½ or 4 feet high; that it was the regular ordinary railing; there was no screen there. Witness was asked this question: "Have they any screens on these cars now?" This question was objected to as immaterial. The objection was sustained, to which the plaintiff excepted. Witness was asked how long a time intervened between the time that the deceased first put his head over the car and straightened up and the second time, to which he replied that it might have been a minute or two. That he stood there with his back against the car for this length of time and put his head over again. Witness said that the deceased, when he came out of the car, seemed to be in distress and was very pale. On cross-examination the witness testified that he tried to hollow at the deceased before he was struck, and that about...