Grace v. St. Louis R. Co.

• Citation: 56 S.W. 1121,156 Mo. 295
• Parties: GRACE v. ST. LOUIS R. CO.
• Decision Date: 15 May 1900
• Court: United States State Supreme Court of Missouri

56 S.W. 1121

156 Mo. 295

GRACE v. ST. LOUIS R. CO.

Supreme Court of Missouri, Division No. 1.

May 15, 1900.

STREET RAILWAY — PASSENGER — INJURIES ON ALIGHTING — NEGLIGENCE — EVIDENCE — DEMURRER — DEFENDANT'S SERVANTS — DUTY TO EXERCISE CARE — INSTRUCTIONS — HARMLESS ERROR — STANDARD OF CARE.

1. Where, in an action for injuries against a street-railway company, caused by the negligent handling of a car on which plaintiff was a passenger, there is some evidence that the accident resulted from the gripman's starting the car suddenly after slowing it down to allow plaintiff to alight, a demurrer to plaintiff's evidence is properly overruled.

2. Where, in an action against a street-railway company for injuries caused plaintiff by suddenly starting a car on which he was a passenger after slowing it down to permit him to alight, the court instructs that it was the defendant's duty to so control its cars as to enable plaintiff to alight in safety at his point of destination, and the evidence shows the accident to have occurred before the destination was reached, it is proper to refuse a modifying instruction, asked by defendant, that it was not defendant's duty to begin stopping the car as soon as plaintiff signified his desire to get off, nor as soon as he got down on the running board.

3. In an action against a street-railway company for injuries to plaintiff caused by suddenly starting a car on which he was a passenger after slowing it down to allow him to alight, indefiniteness in instructing that it was the duty of defendant's servants to exercise a high degree of care to so control its cars as to enable plaintiff to alight safely at his point of destination is cured by also instructing that, if plaintiff signified his desire to stop at a certain street, and the usual place of stopping at such street for a car going north was at the north crossing, then the gripman, in the exercise of a high degree of care, was not required to slow up or attempt to stop south of such north crossing, though plaintiff left his seat, and got down on the running board.

4. Where, in an action against a street-railway company for injuries to a passenger, the petition charges negligence in starting a car while plaintiff was alighting, after slowing it down to enable him to alight, and the court instructs that on plaintiff's signaling his desire to alight at a certain street it was the duty of defendant's servants to exercise a high degree of care to so manage its cars that plaintiff might safely alight, defendant's objection that the instruction does not conform to the negligence alleged is overcome by other instructions that the only allegation of negligence was that the car was slowed up to allow plaintiff to alight, and negligently started forward while he was in the act of alighting, and that plaintiff must prove such allegation, and that, if he was injured from some other cause, or in some other way, he could not recover.

5. Where, in an action against a street-railway company for injuries caused by the gripman's suddenly starting a car on which plaintiff was a passenger after slowing it down to enable him to alight, the evidence shows that plaintiff signaled to the gripman to stop, and then left his seat, and stood on the running board, an instruction that, after plaintiff signaled to the gripman, it was the duty of both him and the conductor to exercise a high degree of care to enable plaintiff to alight safely, is harmless error, though the conductor was not signaled, there being no issue as to the conductor's negligence.

6. In an action against a street-railway company for injuries caused by suddenly starting a car on which plaintiff was a passenger after slowing it down to enable him to alight, it is not error to instruct that defendant's employés were chargeable with a high degree of care, such as practical and skillful railroad men would have exercised under similar circumstances, though there is no evidence showing what practical and skillful railroad men would do under such circumstances.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Action for injuries by John W. Grace against the St. Louis Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

On July 18, 1891, about 8:30 p. m., the plaintiff became a passenger on defendant's train of cable cars, composed of a grip car and an open coach, at Franklin avenue and Broadway, according to his showing, or at Biddle and Broadway, according to defendant's showing (whichever it was is immaterial in this case), paid his fare, and took a seat on the right side of the grip, two or three seats from the rear of the car, intending to go to Howard street and Broadway. The negligence charged in the petition is that when the car reached his destination it was slowed up, at his request, to allow him to alight, and "while plaintiff was in the act of alighting from said car, and before he had a reasonable time or opportunity to so alight, defendant's servants in charge of said cars negligently caused and permitted said car to be started forward with great force, and with such a shock that plaintiff was thereby thrown from said car, on which he was such passenger, to the street, and the trailer ran upon and over the plaintiff's legs and body, and thereby plaintiff's instep and leg was broken, and the bones of his ankle and leg crushed, and plaintiff was otherwise greatly bruised and injured upon his body." The answer admits the character and business of the defendant, and that the plaintiff was a passenger, but denies the other allegations of the petition, and pleads contributory negligence. The trial developed these facts: When the train neared Howard street, and was a hundred feet south of the south side thereof, according to plaintiff's testimony, or about two or three feet south of the south side thereof, according to plaintiff's witness Lee's testimony, the plaintiff raised his hand to the conductor, as he and Lee say, or nodded to the gripman, as the latter says, to signify his desire to get off at Howard street. The train was then concededly running too fast for a passenger to get off with safety. The plaintiff testified that he did not know whether the conductor saw his signal or not, or whether he rang the bell, nor did he notice the gripman do anything to stop or start the car. His witness Lee, however, testified positively that the conductor rang the bell as a signal for the train to stop as the front of the grip car was crossing the south side of Howard street. Both of them testify that the plaintiff arose from his seat when he signified his desire to get off, and stepped down on the running board; that the train then slowed up, but not sufficiently to enable a person to safely get off, and that, "if it had stopped the least bit more, he could have been able to step off," but that the train gave a jerk or bulge forward, and the plaintiff was thrown off and run over by the front wheel of the trailer. The plaintiff does not say what caused the train to jerk, but does say he did not see the gripman do anything to cause it. His witness Lee, however, testified positively: "Before the bulge of the car, the gripman slacked up a little. Before the car made the jerk, he turned it on again," and, further describing the result thereof, said: "There was a bill-dill like in the bulge. That is what threw him off before he made his step." This witness, speaking of himself, said, "Besides being a teamster, I am a minister of the gospel." The evidence gives no definition of the meaning of a "bill-dill," nor are we sufficiently expert in the phraseology employed in street-car operating to understand the term; but, as it does not appear from the record that any explanation was asked by any one, it is fair to assume that the trial judge, the attorneys on both sides, and the jurors understood the meaning of the term. There is...