Gorman v. St. Louis Transit Co.

• Decision Date: 25 November 1902
• Parties: GORMAN v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

70 S.W. 731

96 Mo. App. 602

GORMAN v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

November 25, 1902.

STREET RAILWAYS—INJURIES TO PASSENGER —NEGLIGENCE—EVIDENCE—SUFFICIENCY —INSTRUCTIONS.

1. A petition alleged that a passenger on a street car, as it approached a regular stopping place, notified the conductor of his wish

to alight; that, in sight of the conductor, he stepped upon the lower step of the platform; that the car slackened speed, but did not stop, and immediately after passing the crossing the employés "carelessly and negligently suddenly increased its speed without giving plaintiff warning"; and that thereby plaintiff was thrown to the ground, etc. Held, that the petition sufficiently pleaded the negligence of the company.

2. Where a verdict was based on substantial evidence that the ribs of a man 69 years of age had sustained "green-stick fractures" (that is, fractures in which only one side of the ribs were broken), the verdict would be sustained, though there might be strong expert testimony as to the impossibility of the ribs of a man of that age sustaining such a fracture.

3. The insertion of the word "voluntarily" in instructions requested by defendant, so as to make them read that if plaintiff's injuries "were caused by his voluntarily stepping from a car," etc., and that if "plaintiff did voluntarily step from said car," did not alter their meaning, and was no cause for complaint.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by John Gorman against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The suit is for damages on account of injuries received by plaintiff by being thrown from the rear platform of one of the defendant's cars, where he had gone preparatory to alighting from the car when it reached his point of destination. On behalf of the plaintiff the evidence tends to prove that on the evening of October 10, 1901, he took passage on one of defendant's cars going north on Broadway, in the city of St. Louis, intending to get off at the intersection of Hall's Ferry road and Broadway,—a regular point for receiving passengers on, and discharging them from, defendant's cars; that, when the car was within less than a block of the crossing of Hall's Ferry road, plaintiff left his seat in the car, and moved to the rear platform, where the conductor was standing; that he then notified the conductor that he wished to get off at the Hall's Ferry crossing; that the conductor assented to this request; that plaintiff, preparatory to stepping from the car, stepped down with his left foot on the lower step of the car, his right foot resting on the platform, and, holding to the rail of the platform with one hand, he waited in this position for the car to stop so that he could get off; that the speed of the car, though slackened, was still too great to enable the plaintiff to step off in safety when the crossing was reached, and he did not attempt to alight, but remained in this position until the crossing was passed, when the speed of the car was suddenly greatly increased, and plaintiff was thereby violently thrown into the street, which resulted in the fracture of one rib, and a "green-stick fracture" of two others, on his left side; that his nose was skinned and his hands bruised; that from these injuries plaintiff suffered great pain, and was unable to do any work for five or six weeks; that plaintiff is a farmer, and was 69 years old at the time he received the injuries. On the part of defendant the evidence tends to show that plaintiff did not notify the conductor that he wished to leave the car at Hall's Ferry crossing; that the conductor was not on the rear platform when plaintiff went there to alight from the car, but was in the front end of the car; that the car was running at a speed of about 5½ miles per hour, and it did not slacken speed as it approached Hall's Ferry crossing, and the speed was not increased after it passed the crossing; that the power was too weak to suddenly increase the speed, and the car was running from 4 to 5 miles an hour at the time of the accident; that plaintiff walked off the car, and fell into the street; that none of his ribs were broken or injured, the only injury he received being a scratch on the bridge of his nose and a bruised finger, and that he was not disabled from pursuing his ordinary avocation; that his ribs were too old to sustain a green-stick fracture.

For the plaintiff the court gave the following instruction: "(1) The court instructs the jury that if they believe from the evidence that on or about the 10th day of October, 1901, the defendant was engaged in operating a line of electric railway along Broadway, in this city, for the transportation of passengers for hire, and that on or about that day plaintiff was a passenger on one of defendant's northbound cars, and notified defendant's conductor in charge of said car to cause same to be stopped at the street crossing at the junction of Hall's Ferry road and Broadway, in order that plaintiff might leave the car, and that said crossing was a regular and customary stopping place for defendant's cars, and that after so notifying said conductor said car was slowed up, and the plaintiff took a position upon the step of the back platform of the car, in full view of the conductor, for the purpose of stepping off the car when same stopped, and that the employés of defendant in charge of said car failed to stop same at said crossing as requested by plaintiff, but slackened its speed as if intending to stop, and after passing that point suddenly increased the speed of the car, without giving the plaintiff any warning of their intention so to do, and that, by reason of the sudden increase of speed of said car, plaintiff was thrown therefrom to the ground and injured, then you will find for the plaintiff, and assess his damages at such sum as you may believe from the evidence will be a fair compensation for the pain of body and anguish of mind and disfigurement, if any, suffered by him as the direct result of being so thrown from said car, provided you further find from the evidence that the plaintiff at the time was exercising ordinary care for his own safety,"—and for the defendant the following: "(1) The court instructs the jury that, before plaintiff can recover, he must prove by the preponderance or greater weight of the evidence—First, that the defendant was negligent, as defined in these instructions; second, that said negligence was the direct, proximate, and efficient cause of whatever injuries he sustained. And...