Hayward v. People's Motorbus Co.

• Decision Date: 10 January 1928
• Docket Number: No. 20041.,20041.
• Parties: HAYWARD v. PEOPLE'S MOTORBUS CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

1 S.W.2d 252

HAYWARD v. PEOPLE'S MOTORBUS CO. OF ST. LOUIS.

No. 20041.

St. Louis Court of Appeals. Missouri.

January 10, 1928.

Rehearing Denied January 24, 1928.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

Action by James Hayward, on whose death pending appeal the cause was revived in the name of Elizabeth D. Hayward, executrix of his estate, against the People's Motorbus Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Carter, Jones & Turney, of St. Louis, for appellant.

Foristel, Mudd, Blair & Habenicht and Harry S. Rooks, all of St. Louis, for respondent.

BENNICK, C.

This action was instituted by James Hayward to recover damages for personal injuries, sustained by him on May 29, 1924, when he was caused to fall from the rear platform of a motorbus, owned and oprated by defendant, its agents, and servants. The verdict of the jury was for plaintiff in the sum of $5,000, and from the judgment rendered thereon, defendant, after an unavailing motion for a new trial, duly perfected its appeal. Prior to the submission of the case in this court, the death of Hayward was suggested, and the cause revived in the name of Elizabeth D. Hayward, the executrix of his estate.

The petition, as finally amended, alleged that while the deceased, as a passenger, was boarding the rear platform of the bus, which was standing at or near the intersection of Washington avenue and Seventh street, in the city of St. Louis, the same was suddenly started forward, through the carelessness and negligence of defendant, before he had had a reasonable opportunity to reach a place of safety on said rear platform.

The amended answer of defendant was a general denial, coupled with a plea of contributory negligence to the effect that the deceased had attempted to board the motorbus while the same was in motion.

The reply was in conventional form.

The evidence disclosed that the deceased, then 72 years of age, a former practicing attorney, accompanied by Mr. Leighton Shields, also of the bar, were proceeding eastwardly along the north side of Washington avenue, for the purpose of securing passage homeward on a west-bound motorbus. Before Seventh street was reached, both parties observed a bus standing next to the north curb of Washington avenue, some 75 feet east of Seventh street. They thereupon crossed Seventh street and continued onward towards the bus, which meanwhile had remained stationary on account of the heavy traffic with which it was surrounded.

It appears that other people boarded the bus at this point, followed by Mr. Shields, who was assisted aboard by the conductor who was standing on the rear platform. The deceased then stepped upon the platform with his left foot, and grasped the guard rail with his left hand (while the bus was yet at a standstill); and while he was thus situated, the bus was suddenly and unexpectedly started forward, causing him to lose his balance and fall to the street, thereby sustaining the injuries by reason of which this action was brought.

Other facts of significance are that busses were rather a novelty at the time; that there were no signs posted to indicate customary or regular stopping places; and that Mr. Shields had made his way inside of the bus proper, and was in the act of taking his seat, before the bus was started forward.

Defendant first argues at length that its requested peremptory instruction in the nature of a demurrer to all the evidence should have been given, for the alleged reasons that the relationship of passenger and carrier was not established, that causal negligence was not proved, and that the deceased was shown to have been guilty of contributory negligence as a matter of law.

The greatest stress is laid by counsel upon the last of the above contentions, based upon the assumption that the deceased was conclusively shown to have been injured while in an attempt to board a moving bus. The falsity of the assumption upon which the argument proceeds is the best answer to the argument itself. It seems hardly necessary to remind such learned counsel as those for defendant that, in passing upon the demurrer offered at the close of the entire case, the plaintiff must be given the benefit of all testimony that was adduced in his behalf, as well as of any favorable testimony that may have been given by defendant's witnesses, in addition to which he must be allowed the benefit of reasonable inferences of fact on all the proof. Williams v. Kansas City S. R. Co., 257 Mo. 87, 165 S. W. 788, 52 L. R. A. (N. S.) 443; Stauffer v. Met. St. Ry. Co., 243 Mo. 305, 147 S. W. 1032; Walker v. Mitchell Clay Mfg. Co. (Mo. App.) 291 S. W. 180; Krummenacher Drug Co. v. Chouteau (Mo. App.) 296 S. W. 255. Moreover, it is axiomatic and but a reiteration of the above that the evidence for plaintiff must be regarded as true, so long as it is not impossible as opposed to the physics of the case, or entirely beyond reason, and defendant's evidence must be taken as false, where it is contradicted by that for plaintiff. Van Raalte v. Graff, 299 Mo. 513, 253 S. W. 220; Schroeder v. Wells, 310 Mo. 642, 276 S. W. 60; Wair v. American Car & Foundry Co. (Mo. App.) 285 S. W. 155; Clower v. Fidelity-Phenix Fire Ins. Co. (Mo. App.) 296 S. W. 257.

Consequently, when the evidence given by defendant's witnesses is disregarded, the sole remaining support for the contention now made is to be derived from certain admissions of the deceased himself, made in a signed statement and in his deposition, which were contradictory of his testimony on the stand at least to the point that the inference might have been drawn therefrom that he did attempt to board the bus while the same was in motion. However, there was positive and unequivocal testimony of a substantial nature to the contrary, as our stated facts have disclosed, thus casting the duty upon the jury to determine what credence they would give to the evidence before them, as impeached by anything the deceased may have said of different import upon such prior occasions. Smiley v. Kinney (Mo. Sup.) 262 S. W. 349; Sugarwater v. Fleming (Mo. Sup.) 293 S. W. 111; Davidson v. St. Louis-S. F. Ry. Co., 301 Mo. 79, 256 S. W. 169; Gullvezan v. Union of Roumanian Societies (Mo. App.) 287 S. W. 787; Gibbons v. Wells (Mo App.) 293 S. W. 89; Shields v. Day (Mo. App.) 298 S. W. 1053.

It follows, therefore, that the evidence, when viewed in the light most favorable to plaintiff, and as resolved against defendant's contention by the verdict of the jury, presents a situation wherein the deceased was injured, not in an attempt to board the bus while the same was in motion, but instead by the premature starting of the bus, as a consequence of which the question of contributory negligence, in the respect here assigned, is not an issue in the case.

Upon the issue of actionable negligence we think there can be no doubt that when the deceased, following directly behind other parties who had boarded the bus with the knowledge, and, in the case of Mr. Shields at least, with the assistance of the conductor, set his foot upon the rear platform, with the intention of securing passage therein, the relationship of passenger and carrier was established with all of the attendant obligations, irrespective of where the regular or customary stopping place for the bus may have been. Vrooman v. Harvey (Mo. Sup.) 197 S. W. 118; Devoy v. St. Louis Transit Co., 192 Mo. 197, 91 S. W. 140; Erny v. Wells (Mo. Sup.) 293 S. W. 119; Conway v. Met. St. Ry. Co., 161 Mo. App. 81, 142 S. W. 1101; Goebel v. United Rys. Co. (Mo. App.) 181 S. W. 1051; Posch v. Southern Electric R. Co., 76 Mo. App. 601; 10 C. J. 617.

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