Gunn v. United Rys. Co. of St. Louis

• Decision Date: 16 March 1917
• Docket Number: No. 18155.,18155.
• Parties: GUNN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

193 S.W. 814

270 Mo. 517

GUNN v. UNITED RYS. CO. OF ST. LOUIS.

No. 18155.

Supreme Court of Missouri, Division No. 2.

March 16, 1917.

Motion for Rehearing Denied March 30, 1917.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Catherine Gunn against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appealed to St. Louis Court of Appeals (177 Mo. App. 512, 160 S. W. 540), where judgment was affirmed and a dissenting opinion filed, holding that majority opinion was contrary to a former decision, and appeal certified to Supreme Court. Majority opinion of Court of Appeals sustained in part, judgment reversed, and cause remanded for new trial.

Plaintiff recovered judgment for $3,500 as damages for personal injuries. The defendant appealed to the St. Louis Court of Appeals, where the judgment was affirmed. Reynolds, P. J., filed a dissenting opinion, in which he held that the majority opinion was contrary to the decision of this court, in Peck v. St. Louis Transit Co., 178 Mo. 617, 77 S. W. 736, and the appeal was accordingly certified to this court. The opinions filed in the St. Louis Court of Appeals are reported in 177 Mo. App. 512, 160 S. W. 540, and in 176 S. W. 227. The petition charges the defendant's negligence and the infliction of injuries thus:

"That on or about May 16, 1910, the plaintiff signaled the motorman in charge of one of defendant's cars, running north on Seventh street, to stop said car at the north side of Morgan street, where said Morgan street intersects with Seventh street, for the purpose of enabling her to board said car and become a passenger thereon, and that said motorman did stop said car at said point. That while said car was so stopped, plaintiff, with due care and caution on her part, started to get on the same, and that while the plaintiff was so engaged, defendant through its agents and servants did, before plaintiff had a reasonable time in which to get safely on said car, negligently and carelessly start said car, thereby hurling and throwing plaintiff backwards, with great force and violence, and dragging her, causing the injuries herein complained of. And for further allegation of negligence, plaintiff says that defendant, through its agents and servants, negligently and carelessly failed to allow plaintiff a reasonable time to get safely on said car, before starting it, and said defendant through its agents and servants, negligently and recklessly started said car, while plaintiff was with due care and caution on her part in the act of getting on same, thereby violently throwing her backward and dragging her, causing the injuries hereinafter set out."

The answer contains a general denial and the following:

"Further answering, this defendant says that whatever injuries, if any, plaintiff may have sustained were caused by her own carelessness and negligence."

The reply is a general denial.

The plaintiff testified that she lived with her husband and five children; that on the day of the injury she was within two months of her confinement; that she had been shopping and was going home a quarter after 1 o'clock, with her purchases in a basket; that the car stopped in response to her signal; that she had hold of the rail with her left hand, and had her right foot on the step, when the car started before she could get aboard; that she was dragged; and that some men held her on the car. She testified to serious injuries which she received, and which need not be here stated.

John C. Heman, a witness for plaintiff, testified:

"Q. You were on that car? A. Yes, sir. Q. Just tell the court and jury what you saw, Mr. Heman. A. Why, I was standing on the back platform leaning up against the back end of the car, and the conductor was up in the front end of the car, and this car started off with a rush, and this lady, she was just about to step on the car, but the car had started, and she held it and run along with the car, and with that somebody pulled the signal rope and stopped the car. The car run probably about 20 feet, and she kind of fell back in on the step of the car, and there was another gentleman standing beside of me jumped over and reached with his arm and caught her before she fell. With that the car stopped, and she straightened up and walked over to the sidewalk and stood there. Q. During the time this car started forward with a rush one of her feet was on the ground? A. I think that both of her feet was on the ground, and she was run along with the car, that is the best of my recollection.

"Cross-examination by Mr. Blodgett: Q. You say you were on the back platform? A. Yes, sir. Q. You saw this woman when she came to walk out and take this car? A. Yes, sir. Q. When she got hold of the upright rod the car was already in motion? A. I think the car was in motion; I am almost positive it was in motion. When she grabbed for it, she had a bundle, she swung around the rail, and she stepped back just before the car stopped. A gentleman grabbed her and helped her on. Q. The car stopped within 15 or 20 feet, and after that she walked over to the sidewalk? A. Yes, sir. Q. Was she dragged? A. No; she was not.

"By Mr. Goodwin: Did the car stop at the corner to take on passengers? A. Yes, sir. Q. While it stopped there she came up and started to get on? A. Yes, sir.

"By the Court: Had any other passengers got on the car there? A. No, I think she was the only passenger. Q. And the car stopped there? A. The car stopped, yes, and it started off with a sudden jerk, just about the time she reached for the rail, but she grabbed it, held on to it, and the car started off with a rush, and probably went some 15 or 20 feet, and the conductor was inside, and somebody pulled the bell cord, and it stopped very sudden."

Paul Werner was on the car at the time. He testified for the defendant thus:

"Q. Where were you standing on that car? A. On the rear end of the rear platform. Q. Will you state just what happened there? A. The car down at Seventh and Morgan, if I am not mistaken. The car came to a stop. There was a lady; she was on the sidewalk, and the car came to; she was already stopped; and I don't know exactly if there was anybody got off or on, but the car, I seen her coming over to the car, but then I heard the bell going, I thought the way she tried to go on the car, of course she couldn't go nowhere else, I thought by her expression, I thought she was coming to the car. I thought something would happen, I reached over with my hand; at that time the car already commenced to start. Then she tried to put her foot on. I seen she couldn't hold herself on account she had so many bundles. I reached over and held her. The car stopped right there; if it was 20 or 50 or 100 feet I don't know. Q. Was this car in motion or stopped when she caught hold of the car? A. She was in motion. Q. The car was in motion? A. Yes, sir. Q. She didn't fall? A. No; she didn't fall; she could not fall; I held her."

On cross-examination the following occurred:

"Q. She was, in your judgment, at the time you first saw her, closer to the edge of the sidewalk than she was to the car? A. Yes, sir. Q. And she walked up and the car started out, and she ran and grabbed the car while it was moving, is that it? A. She was pretty close to the car, the bell had already rung, but he didn't start right off when I heard the bell ring, when I seen her she had a little quicker march on her than when she came towards the car, and I thought right away something would happen — the car had already moved — and then she grabbed, and I grabbed her with my arm, and she couldn't fall then. Q. The reason she couldn't fall was she had one foot on the running board, on the first step, when you grabbed hold of her? A. No; she grabbed to step on, and at the same minute she step on I grabbed her. Q. Then as she put her foot on the lower step you grabbed her? A. I grabbed her.

"By Mr. Goodwin: Now, when you saw her reach for the car, you knew a bell had been given, and that there would likely be danger? A. Yes, sir.

"By the Court: Did you say anything? A. No, sir; I never spoke to her. Q. Didn't speak to her at all? A. Except to holler to her to look out, when she came, when I seen her grab for the rail. Q. Then you did holler to her? A. Yes, sir; yes, sir; and at the same time I grabbed her, she had bundles in her arms and she couldn't — Q. You yelled, `Look out,' after she had hold of the car? A. Yes, sir. Q. You yelled, `Look out,' after she had hold of the car? A. No, no; when she tried to reach for it, I seen her reaching for it, but the car just started, and then the car went, and then she must have stepped on with one foot, I lifted her right clean up, I knew she would have fallen if I did not hold her. Q. How far did the car run? A. I don't know, maybe 20, maybe 30, maybe 40 feet. Q. Maybe 30 feet? A. Yes, sir. Q. Was she dragged, was her other foot on the ground? A. No, she couldn't be dragging, because I was holding her; it was impossible; I would have been dragging too."

No instructions were asked by plaintiff, and no fault is found with those given by the court of its own motion. The court refused instruction No. 5, asked by defendant, but gave it with modifications. That instruction, with the modifications shown in italics, reads thus:

"The court instructs the jury that if you find and believe from the evidence that the plaintiff attempted to board a car while said car was in motion, and that such act of plaintiff was negligence, and that the same contributed to her injury, then she cannot recover, and your verdict must be for the defendant."

Defendant's instruction No. 1 was refused. It reads:

"The court instructs the jury that if you find and believe from the evidence that at the time the plaintiff took hold of the handrail of the car, said car was moving, then plaintiff cannot recover, and your verdict must be for the defendant."

R. E. Blodgett, of St. Louis ...