Gardner v. Metropolitan Street Railway Co.

• Decision Date: 27 November 1909
• Parties: ALFRED G. GARDNER, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY et al
• Court: Missouri Supreme Court

122 S.W. 1068

223 Mo. 389

ALFRED G. GARDNER, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY et al

Supreme Court of Missouri, First Division

November 27, 1909

Appeal from Jackson Circuit Court. -- Hon. Jno. G. Park, Judge.

Reversed and remanded.

Theoph. L. Carns for appellant.

(1) A carrier is held to the exercise of that high degree of care caution and foresight for the safety of its passengers that a very careful and prudent person would exercise under like circumstances. And this rule applies not only to the construction of the car, used by a street railway company but to a trolley pole placed at the side of the track and a cross-beam placed thereon, said pole and cross-beam being both used as a part of the operative equipment of the line. Och v. Railway, 130 Mo. 51. (2) A witness who carefully examines the two rails of a street car track, with reference to their relative height, and lays a straight-edge across said rails and measures from the floor of the viaduct on which the track is laid, up to the wearing surface of the rails, is competent to testify as to the relative height or level of the rails, even though he does not use a spirit-level, and even though he is not an experienced railroad man or track man. Indeed a witness would be competent to testify as to such fact, even though he had only made ocular inspection of the rails. 17 Cyc., 102 and 104; Eyerman v. Sheehan, 52 Mo. 221; Heman Construction Co. v. O'Brien, 81 Mo.App. 639; McPherson v. Railroad, 97 Mo. 253; Charlton v Railroad, 200 Mo. 413; Hovey v. Sawyer, 87 Mass. 554; Eastman v. Amoskeag, 44 N.H. 143; Vermillion v. Do, 6 S.D. 466; Morrisette v. Railway, 76 Vt. 267; Posachane Water Co. v. Standart, 97 Cal. 476; Railroad v. Ford, 22 Tex. Civ. App. 13; Olson v. Railroad, 24 Utah 460; Lightfoot v. Tract, 123 Wis. 479. (3) It is competent to show the conditions a short time before and a short time after the accident, as bearing upon the conditions at the time. Swadley v. Railroad, 118 Mo. 268. (4) Remarks by the trial court to counsel for the plaintiff, and in the presence of the jury, such as: "Yes, that suggestion is very improper," or, "No, no, your remark is improper and will not be considered by the jury," or "I am not going to allow you to parade any incompetent testimony here before the jury," have a tendency to discredit counsel before the jury, and to cause the jury to suspect that the plaintiff, through his attorney, is seeking some unfair advantage, and thus to prejudice the jury against the plaintiff and thereby weaken his case. (5) It is not competent for the defendant, in a personal injury case, to introduce in evidence the written report of the motorman or conductor of the car on which the injury occurred, said report being made on the same evening and after the accident occurred, and giving the version of said motorman or conductor as to how the accident occurred. (6) After the plaintiff, in a personal injury case, has shown that he was injured while riding along as a passenger on the defendant's car, by being thrown against an obstruction near the track, and without any negligence on his part, the burden of proof shifts to the defendant to explain the injury by showing that it resulted from some unavoidable cause or from the contributory negligence of the plaintiff. And, under such circumstances, an instruction to the effect that "the burden of proof continues and abides with the plaintiff throughout the entire trial" is erroneous. Olson v. Railroad, 152 Mo. 456; Och v. Railroad, 130 Mo. 51; Wilkerson v. Railroad, 26 Mo.App. 152. (7) An instruction to the jury to find for the defendant, "unless you believe and find from the evidence . . . that the plaintiff has proven by a preponderance of the testimony," . . . the acts of negligence essential to recovery, is too exacting upon the plaintiff, and is erroneous. Grant v. Rowe, 83 Mo.App. 560; Murray v. Railroad, 101 Mo. 236; Williams v. Watson, 34 Mo. 95. (8) It was error for the court to instruct the jury to find for the defendant, unless they found from the evidence that the plaintiff was injured on the west side of the track by being brought into contact with said cross-beam. And, hence, the defendant's instructions 9 and 10, are erroneous. If all the evidence were to the effect that the plaintiff was injured at the place and in the manner stated by the defendant's witnesses, still there would not be a total failure of evidence, and neither would there be a fatal variance. Murdock v. Brown, 16 Mo.App. 549; Brown v. Railroad, 14 Mo.App. 580; Lesinsky v. Railroad, 14 Mo.App. 598; Ridenhour v. Railroad, 102 Mo. 207; Hansberger v. Railroad, 82 Mo.App. 566; Stalzer v. Dold, 84 Mo.App. 565; Hurlbut v. Railroad, 130 Mo. 657; Dickson v. Railroad, 104 Mo. 491; Neir v. Railroad, 12 Mo.App. 35; Girard v. Car Wheel Co., 46 Mo.App. 79; Harley v. Railroad, 57 Mo.App. 675; Werner v. Railroad, 81 Mo. 372; Robertson v. Railroad, 152 Mo. 382; Olmstead v. Smith, 87 Mo. 607; Carroll v. Paul, 16 Mo. 226; McGrew v. Railroad, 87 Mo.App. 250; Buck v. Railroad, 108 Mo. 179. (9) There is no evidence in this case that plaintiff's arm was protruding from the window. But, if it had been so protruding, that fact would not constitute contributory negligence per se. Germantown, etc., v. Brophy, 105 Pa. 83; Murphy v. Railroad, 115 Mo. 111; Winters v. Railroad, 39 Mo. 468; Miller v. Railroad, 5 Mo.App. 471; Carroll v. Railroad, 107 Mo. 663; Husenkamp v. Railroad, 37 Mo. 537; Sweeney v. Railroad, 150 Mo. 385; Farlow v. Kelley, 108 U.S. 288; Quimm v. Railroad, 29 S.C. 381; Summers v. Railroad, 34 La. Ann. 139; Kreimelman v. Jourdan, 107 App. 64; Langan v. Railroad, 72 Mo. 392; Parks v. Railroad, 178 Mo. 108; Seymore v. Railroad, 114 Mo. 226. (10) It is not negligence per se for a passenger to rest his elbow on the window sill of a trolley car. Schneider v. Railroad, 54 F. 466; Dahlberg v. Railroad, 32 Minn. 404.

John H. Lucas and Ben F. White for respondent.

Complaints of errors in regard to the admission and exclusion of evidence; and also of certain remarks of the court were not called to the attention of the trial court in the motion for new trial, and hence they are not before this court for review. This court will not convict the trial court of an error which was not called to its attention in the motion for new trial. Coffey v. Carthage, 200 Mo. 629; State v. Miles, 199 Mo. 530; State ex rel. v Trust Co., 209 Mo. 494. (2) Appellant complains of the action of the court in modifying and giving his instruction number two as to the degree of care due to plaintiff. This instruction, in the very first paragraph, tells the jury that if plaintiff was its passenger "then it was the duty of the defendant to use and exercise that high degree of care, caution and foresight for the safety of the plaintiff that a very careful and prudent person would use and exercise under the circumstances." We think that properly describes the duty of the defendant. This portion of this instruction is not what is complained of: but it is in the instruction and we call attention to it so that this court can see whether, on the whole, the jury were not properly directed. Complaint is made that the court modified a portion of this instruction. But the part quoted from above is as it was given to the jury. The portion of this instruction to which objection is made is that where it is said that it was the duty of the defendant "if it knew, or by the exercise of ordinary care might have known" of the close proximity of the cross-beam to the track to have changed it. It will be noticed that the term ordinary care refers solely and alone to the distance this crossbeam was to the track. Nothing else is included in its scope. The duty which defendant owed to plaintiff as its passenger, was properly set out in this instruction. The only matter to which this ordinary care refers is to whether or not, by the use of such care, defendant might have discovered the situation of this cross-beam and so have changed it, if it needed changing. But this could not have misled or even affected the jury in the remotest degree, for the good and sufficient reason that the testimony shows that the defendant put that cross-beam there when the bridge was rebuilt, six months or so before the accident, and actually knew its condition all the time. If this be true, then how could a jury be affected by an instruction in regard to the "degree of care" which the law imposes upon it to make the discovery? So that this modification of this instruction could not possibly have made any difference in the verdict of the jury. (3) The action of the court in striking from plaintiff's instruction 2, that portion authorizing a recovery for plaintiff if the jury should find that there was an inequality in the height of the two rails, and that this caused the car to lean toward the west, was fully justified, and for two reasons: (a) There was no competent evidence that the east rail was the higher and, (b) no evidence of any character that even if the east rail had been shown to be one inch higher than the west that this in any way tended to produce the injury. Neither the square, the stick nor the 50-foot measure would enable a layman to make even a guess as to which of two rails was the higher. It is preposterous to say that two men, wholly without experience as railroad track men, can take a square, a 50-foot tape line and a stick and tell anything at all as to whether the one or the other of two rails is the higher. Counsel insists that this is not a matter for expert testimony, and cites cases to the effect that a layman who has used a square may testify that the distance between a post and a rail on the track is so much. But can it be possible that counsel overlooks the fact that a square is an...