Gage v. St. Louis Transit Co.
| Decision Date | 26 February 1908 |
| Parties | MRS. HENRY C. GAGE, Appellant, v. ST. LOUIS TRANSIT COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.
Reversed and remanded.
R. P. & C. B. Williams for appellant.
(1) It is not negligence, as a matter of law, for a passenger on a street car to protrude a part of his body out of the car, but the question is one of fact to be determined by the jury; the test being whether an ordinarily prudent man would do the same act under the same or similar circumstances. Smith v. Railroad, 120 Mo.App. 328; Allen v Railroad, 183 Mo. 411; Kreimelmann v. Jourdan Receiver, 107 Mo.App. 64; Perrette v. Kansas City, 162 Mo. 238; Phelps v. Salisbury, 161 Mo. 1; Nixon v. Railroad, 141 Mo. 425; Barton v. St. Louis, etc., Co., 52 Mo. 253; Huelsenkamp v. Railroad, 37 Mo. 537; Miller v. Railroad, 5 Mo.App. 471; Tucker v. Railroad, 53 A.D. 571, 65 N.Y.S. 989, affirmed in 169 N.Y. 589; Francis v. New York Steam Co., 114 N.Y. 380; Cummings v. Worcester, etc., Co., 166 Mass. 220; Powers v. Boston, 154 Mass. 60; Kird v. New Orleans, etc., Co., 109 La. Ann. 525; Summers v. Railroad, 34 La. Ann. 139; Fort Wayne Traction Co. v. Hardendorf (Ind.), 72 N.E. 593; Young v. Waters-Pierce Oil Co., 185 Mo. 634; Railroad v. Hoffbauer, 23 Ind.App. 614; Railroad v. Lee, 50 N. J. L. 435; N. Chicago, etc., Co. v. Williams, 140 Ill. 275; Johnson v. Railroad, 43 Minn. 53; Dahlberg v. Minn., etc., Co., 32 Minn. 404; Railroad v. Phillips (Tex.), 74 S.W. 793; Railroad v. Brophy, 105 Pa. St. 38; Railroad v. Higgs, 38 Kan. 375; Elliott v. Railroad, 18 R. I. 707; Geitz v. Railroad, 72 Wis. 307; Nellis on Street Railway Accident Law, 192; Georgetown v. Smith, 5 L. R. A. (N. S.), 274; 3 Thompson on Negligence, secs. 2972, 2973, 2975. (2) A passenger traveling upon a street car may presume that the carrier will discharge its full duty toward him, and will exercise that high degree of care, in constructing and operating its cars, and in constructing its tracks, imposed by law. Sweeney v. Railroad, 150 Mo. 246; Riska v. Railroad, 180 Mo. 168; Weller v. Railroad, 164 Mo. 180; Hutchinson v. Railroad, 161 Mo. 246; Lynch v. Railroad, 112 Mo. 420; O'Conner v. Railroad, 94 Mo. 150; Deitring v. Railroad, 85 S.W. 140; Bradley v. Spicardsville, 90 Mo.App. 416; Conrad Grocer Co. v. Railroad, 89 Mo.App. 391; Jones v. Railroad, 99 Md. 64; Railroad v. Lee, 50 N. J. L. 435; Elliott v. Railroad, 18 R. I. 707; Johnson v. Railroad, 43 Minn. 53; Nellis on Street Railway Accident Law, 55-62. (3) The operation of street cars with a space of but six inches between them while standing still, and of less space when in motion, is negligence inconsistent with the care required for the protection of passengers. Allen v. Railroad, 183 Mo. 411; Kriemelmann v. Jourdan, Receiver, 107 Mo.App. 64; Barton v. St. Louis, etc., Co., 52 Mo. 253; Winter v. Railroad, 39 Mo. 468; Huelsenkamp v. Railroad, 37 Mo. 537; Miller v. Railroad, 5 Mo.App. 471; Tucker v. Railroad, 53 A.D. 571, 65 N.Y.S. 989, affirmed in 169 N.Y. 589; Francis v. New York Steam Co., 114 N.Y. 380; Cummins v. Railroad, 166 Mass. 220; Kird v. Railroad, 109 La. Ann. 552; Farlow v. Kelley, 108 U.S. 288; Schneider v. New Orleans, etc., Co., 54 F. 466; Fort Wayne Traction Co. v. Hardendorf (Ind.), 72 N.E. 593; Railroad v. Williams, 140 Ill. 275; McCord v. Railroad, 134 N.C. 53; Georgetown v. Smith, 25 App. D. C. 259. (4) That cars will rock and sway when in motion is a matter of common knowledge, of which the courts will take judicial notice. Geitz v. Railroad, 77 Wis. 307; Georgetown v. Smith, 25 App. D. C. 259, 5 L. R. A. (N. S.) 274, and note. (5) The conductor on the street car on which the deceased was killed was guilty of negligence in not warning deceased of his dangerous position. The facts were at least sufficient to warrant the submission of this question to the jury. South Covington v. McCleave, 18 Ky. Law Rep. 1036; Huelsenkamp v. Railroad, 37 Mo. 537. (6) That deceased was a stranger in the city and unfamiliar with the running of electric cars, and the track conditions, and his consequent ignorance of the danger, are a part of the circumstances which surrounded him, and are material in determining the question of contributory negligence. Allen v. Railroad, 183 Mo. 411; 7 Am. and Eng. Ency. Law, 391 and 392; Langan v. Railroad, 72 Mo. 392; Kriemelmann v. Jourdan, 107 Mo.App. 64.
Glendy B. Arnold for respondent; Boyle & Priest of counsel.
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 south track, and that while he was in such position, and in the act of vomiting, another car of the defendant 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 five thousand dollars.
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 Hon. 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...
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