"Plaintiff recovered a verdict and judgment in the sum of $750.00 for personal injuries suffered on account of the alleged negligence of the defendant. The evidence shows that plaintiff was injured by reason of the breaking of a brass shoulder, being a portion of a long handhold made mostly of wood, attached to one of defendant's street cars where passengers board and alight from the same. The allegation of negligence in the petition was that defendant was engaged in the operation of a street railway system in Kansas City, Missouri, and—
"`* * * that on the 19th day of December, 1915, one of defendant's cars stopped at the intersection of Tenth and Locust streets in Kansas City, Missouri, a regular stopping place for defendant's said cars; for the purpose of taking on and discharging passengers; that a number of passengers boarded said car; that just before plaintiff attempted to board the same, said car started forward; that just as said car started, and while said car was moving very slowly, not to exceed approximately one or two miles per hour, plaintiff attempted to board the same; that in boarding said car, plaintiff put his foot upon the step thereof and took hold of one of the handholds, or rods provided on said car by the defendants for the use of passengers in boarding and alighting from said car; that on account of the dangerous and defective and insecure condition of said rod, or handhold, and the manner in which same was attached to said car, said handhold broke and became loosened from said car, thus and thereby, then and there causing this plaintiff to fall from said car to the pavement of the street, and thus and thereby then and there giving to plaintiff the following painful, permanent and dangerous injuries, to wit: * * *
"`Plaintiff says that he has been damaged by the negligent acts of the defendants, aforesaid, in the sum of ten thousand dollars ($10,000) for which sum, `together with costs of suit in his behalf expended he asks judgment.'
"The facts show that plaintiff was injured on the 19th day of December, 1915, at 12:30 p. m. while boarding an east-bound street car on Tenth street in Kansas City, Missouri. The southwest corner of Tenth and Locust streets was the regular stopping place for taking on and discharging passengers for east-bound cars. Defendant's car had stopped at the usual place for the purpose of taking on and discharging passengers. After several passengers had boarded the car at the rear end thereof the car started up at the rate of 1½ to 2 miles per hour. About that time plaintiff who had come north on the west side of Locust street, on the south side of Tenth street, proceeding in a fast walk or slow trot, reached the car when it had gone about its length. He boarded the first step of the car with safety, holding with his right hand to the middle handhold and with his left hand to the west handhold, or the nearest one to the back of the car. When the car had partially crossed Locust street plaintiff attempted to step up into the vestibule when the right handhold broke and came loose, precipitating plaintiff to the pavement.
"We believe that the petition fails to state
a cause of action and from the evidence plaintiff is not entitled to recover, and that defendant's demurrer to the evidence should have been sustained. A person becomes a passenger on a street car by a contract express or implied and may become one in attempting to get on a car at the time and place provided for that purpose, but one does not become a passenger by making an attempt to board a moving .car when the car men are ignorant of his presence. There is no allegation in the petition or contention in this case that the car men knew that plaintiff was attempting to board the car. The car had started up and defendant's servants were not expected to anticipate that persons would board it. There was no pleading or proof that defendant by custom had permitted persons to board cars after they had started up. Plaintiff was not an invitee nor was he a passenger. Schepers v. Union Depot Ry. Co., 126 Mo. 665, 675, 29 S. W. 712; Schaefer v. St. Louis & Suburban Railway Co., 128 Mo. 64, 71, 30 S. W. 331; Meriwether v. Railway Co., 45 Mo. App. 528, 534; Mathews v. Railway, 156 Mo. App. 715, 723, 137 S. W. 1003; Danielson v. Railway, 175 Mo. App. 314, 316, 162 S. W. 307; Speaks v. Railway, 179 Mo. App. 311, 323, 324, 166 S. W. 864. Defendant owed him no duty other than to use ordinary care to avoid injuring him after its servants discovered or should have known that voluntarily and uninvited he had placed himself on the car and was liable to be hurt. Mathews v. Railway, supra; Speaks v. Railway Co., supra.
"In the case of McCarty v. Railroad, 105 Mo. App. 596, 80 S. W. 7, plaintiff boarded a car not at the usual stopping place and where he was not known or expected by defendant's servants in charge of the car. The car started and plaintiff grabbed for the handhold and it came loose, injuring him. The court permitted him to recover on the theory that defendant owed him under the circumstances the duty of using ordinary care to furnish a reasonably safe handhold. The court's theory is expressed on pages 603, 604 of the opinion (80 S. W. 9), wherein the court said:
"`The present plaintiff was not a servant nor, yet, a passenger; but as regards the use of the handrail at an unusual place, his status was intermediate between that of a bare licensee and a passenger; a status that has no distinctive legal appellation so far as we know. He was not exactly an invited licensee, but, perhaps, might be called appropriately a probable licensee; for he, like every one else, was expected to use the handrail as an aid to mounting to the platform and maintaining a position on it. The duty owed by the defendant to the plaintiff is like that owed by railway companies to persons who walk on depot platforms or get on cars, not with the intention of becoming passengers nor as mere idlers or intruders, but to assist friends who are taking passage, or on some other privileged mission. A carrier is under an obligation to that class of people to use ordinary care in keeping its platform fit for their use and in regulating the movements of its trains so as not to hurt them.'
"If the court was correct in that case then we think that this plaintiff has a case. However, we are unable to agree with the theory upon which the court permitted recovery in that case. We think the court clearly in error in comparing plaintiff's position in that case to that of persons who walk on depot platforms or who assist passengers on and off of trains. Carriers are under obligation to use ordinary care towards such persons for the reason that the latter are invited to use such places. We know of no such status as intermediate between that of a bare licensee and a passenger, or a probable licensee. The learned judge who wrote the opinion in the McCarty Case cites no authority to support his statement that there is such a status. The plaintiff, both in the McCarty Case and in this case, was not invited to board the car under the circumstances shown in evidence. "From what we have said the judgment must be reversed and it is so ordered. All concur. But deeming the opinion herein to be in conflict with the case of McCarty v. Railroad, supra, decided by the St. Louis Court of Appeals, the cause is certified to the Supreme Court."
I. In Schaefer v. St. Louis & Suburban Railway Co., 128 Mo. 64, loc. cit. 71, 30 S. W. 331, 332, the doctrine was enunciated that
"Without a contract for carriage on one part shown, and an acceptance on part of the other, either expressed or implied, the relation of passenger and carrier can never exist."
