Graefe v. St. Louis Transit Co.

• Decision Date: 14 December 1909
• Parties: GRAEFE v. ST. LOUIS TRANSIT CO. et al.
• Court: Missouri Supreme Court

123 S.W. 835

GRAEFE v. ST. LOUIS TRANSIT CO. et al.

Supreme Court of Missouri, Division No. 2.

December 14, 1909.

1. APPEAL AND ERROR (§ 856) — APPEAL FROM GRANT OF NEW TRIAL — SCOPE OF REVIEW.

On appeal from an order granting a new trial, the court is not confined to the grounds on which the order was based, but the order will be affirmed if it can be sustained on any of the grounds on which the motion was made.

2. TRIAL (§ 420) — WAIVER OF ERROR — REFUSAL TO DIRECT VERDICT — FAILURE TO RENEW MOTION.

By introducing evidence after the overruling of his demurrer to the evidence by a motion for direction of a verdict at the close of plaintiff's evidence, and by failure to renew such motion at the close of all the evidence, defendant does not waive his right to have the ruling of the court reviewed.

3. CARRIERS (§ 306) — INJURY TO PASSENGER — LIABILITY OF LESSOR OF ROAD.

The lease of a street railroad, giving the lessee entire control of its operation for a term of years, relieves the lessor from liability for an injury to a passenger resulting from the negligence of the lessee's employés.

4. CARRIERS (§ 316) — INJURY TO PASSENGER — VALIDITY OF LEASE — BURDEN OF PROOF.

Where plaintiff seeks to hold liable for personal injuries the lessor of a street railroad on which the injuries occurred, while plaintiff was attempting to board the car, and for the purpose of showing such liability introduces the lease in evidence, to avoid liability the burden is not on defendant of showing the filing with the Secretary of State its acceptance of the provisions of the act authorizing such lease as provided by Rev. St. 1899, § 1188 (Ann. St. 1906, p. 1002), and municipal consent to the lease as provided by Const. art. 12, § 20 (Ann. St. 1906, p. 294), as, in the absence of evidence to the contrary, defendant is presumed to have complied with such provisions.

5. CARRIERS (§ 340) — INJURY TO PASSENGER — CONTRIBUTORY NEGLIGENCE — AVOIDABLE INJURY.

Where plaintiff attempted to board a street car after being warned by the motorman not to do so, and the car could not, by the exercise of ordinary care, be stopped in less than 35 to

45 feet, defendant is not liable for injuries received by plaintiff while being dragged that distance, but would be liable only for injuries received after the car had traveled that distance.

6. NEGLIGENCE (§ 121) — SUFFICIENCY OF EVIDENCE — CAUSE OF INJURY.

Where the injury may have resulted from one of two causes, for one of which, and not the other, defendant is liable, plaintiff must show that the cause for which defendant is liable produced the injury; and, if the evidence leaves it uncertain, plaintiff cannot recover.

7. TRIAL (§ 252) — INSTRUCTIONS — SUFFICIENCY OF EVIDENCE.

Where plaintiff's evidence all shows his injury by the sudden starting of the car after it had been stopped for him to get on, an instruction for plaintiff, adopting the theory of the defense that plaintiff was injured in attempting to board the car while at full speed, after he was warned by the motorman not to get on, is erroneous as without evidence to support it.

8. CARRIERS (§ 321) — INJURY TO PASSENGER — INSTRUCTIONS.

After the giving of an instruction that plaintiff could recover if the car stopped in response to his signal, and that it was then negligently started with a jerk, causing him to fall, it was error to give another instruction that plaintiff could recover though the car was not stopped, and that plaintiff was warned by the motorman not to get on, and plaintiff was injured in attempting to board the car while running at full speed by being dragged an unnecessary distance, and this contributed to the cause of his injury; the two causes of injury being so inconsistent that they could not contribute with each other to produce the injury.

9. TRIAL (§ 252) — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

Where the negligence of the motorman was in failing to use ordinary care in stopping the car to prevent further injury to plaintiff after the car could have been stopped, and plaintiff did receive further injury, such negligence did not contribute to those injuries, but were the direct and proximate cause thereof; and an instruction that, "if the failure or omission of the motorman to exercise such ordinary care directly contributed to the cause of injury," plaintiff could recover was erroneous as not based on the facts in the case.

10. DAMAGES (§ 191) — PERSONAL INJURIES — EXPENSES INCURRED — EVIDENCE.

Recovery cannot be had for expenses incurred in nursing plaintiff on testimony merely that trained nurses were employed, without any evidence as to the time of such employment, who employed them, or what they were paid.

Appeal from St. Louis Circuit Court; Jno. W. McElhinney, Judge.

Action by A. H. W. Graefe against the St. Louis Transit Company and the United Railways Company of St. Louis. Plaintiff had judgment, and from an order granting a new trial he appeals. Affirmed.

This action was brought in the city of St. Louis against the St. Louis Transit Company to recover for personal injuries received by plaintiff while trying to board a street car. A change of venue was awarded to St. Louis county, where, by amended petition, the United Railways Company was also made a party defendant.

The plaintiff's amended petition, in so far as is necessary to the determination of this appeal, is as follows: "On November 15, 1901, the plaintiff, wishing and intending to become a passenger for hire on one of defendants' said electric cars to be carried from the intersection of Bell and Garrison avenues in said city to another point upon defendants' said line in said city of St. Louis, signaled for that purpose to the motorman upon and in charge of a south-bound car of defendants' said Easton avenue line to stop said car on Garrison avenue, near the southwest corner of Bell and Garrison avenues, which was then a usual place where defendants received passengers on said cars. Said signal was given by plaintiff as said car approached from the north said southwest corner of Garrison avenue and Bell street, in ample time to permit said car to come to a full stop opposite said corner. Plaintiff was at the time standing near said car track near said corner, and at a convenient distance from said car to enter the same, and was ready and willing to pay on demand the compensation required by defendants for carriage on defendants' said line; and, in response to said signal of plaintiff, said car was caused to run slowly by said motorman, and was brought nearly to a standstill by said motorman in order to allow plaintiff to get on said car at or near the place where he was standing as aforesaid, whereupon plaintiff, with the knowledge and consent of defendants' said agent on said car, proceeded to enter said car while the same was going at a speed so slow that a man of ordinary care and prudence could safely enter same. The front platform of said car was at the time open for admission of plaintiff, and he boarded said car by putting his foot on said front platform and raising himself upon said car by grasping the handholds thereon, using ordinary care in so doing, and became a passenger on said car; but while plaintiff was in the act of entering said car as a passenger as aforesaid, it was negligently caused to move forward by said motorman with a sudden jerk, before plaintiff had had a reasonable time to reach a position of safety on said car, so that plaintiff, by said negligent movement of said car and said negligent act of said motorman, was shaken from the step of said platform and dragged a long distance on and along said Garrison avenue, while said car was negligently caused by said motorman to continue running and dragging said plaintiff for a long distance, notwithstanding said motorman by the exercise of due and reasonable care then and there could have known, and did know, the plaintiff's position of peril, and that he was being dragged along said Garrison avenue as aforesaid, and notwithstanding said motorman, by taking due and reasonable care in the management of said car, could have stopped said car in time to prevent injury to plaintiff, or such severe injuries as he sustained; and the said motorman failed to use such care in each and all of the particulars aforesaid." The charge in the petition that the car was not equipped with reasonably safe appliances was abandoned, and no instruction thereon asked. The answer of defendant United Railways Company was a general denial. That of defendant St. Louis Transit Company was a general denial, with a plea that the accident was due to the negligence of plaintiff, which negligence was set out in detail.

The cause was tried by a jury on January 25, and 26, 1904, in the circuit court of St. Louis county, and a joint judgment rendered against defendants for $20,000. Afterward the judgment was modified by remittitur, and reduced to $14,000. Within the statutory time after verdict, defendants jointly moved the court for a new trial for the following reasons: "(1) The court erred in admitting, over the objection of defendants, irrelevant and incompetent evidence offered by plaintiff. (2) The court erred in refusing to admit relevant and competent evidence offered by defendants. (3) The court erred in refusing to give, on behalf of defendant United Railways Company, the demurrer to the evidence asked by defendants at the close of plaintiff's case. (4) The court erred in giving to the jury the instructions asked by plaintiff. (5) The court erred in modifying instructions asked by defendants, and of its motion giving said instructions as modified to the jury. (6) The court erred in refusing to give to the jury as asked instructions asked by defendants. (7) The verdict is against the weight of the evidence. (8) The verdict is excessive in amount. (9) The verdict is so contrary to the weight of the evidence, and so excessive in amount, that it must be the result of...