Huelsenkamp v. Citizens' Ry. Co.

• Decision Date: 31 March 1866
• Citation: 37 Mo. 537
• Parties: BERTHA HUELSENKAMP, Respondent, v. THE CITIZENS' RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

37 Mo. 537

BERTHA HUELSENKAMP, Respondent,

v.THE CITIZENS' RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Court of Common Pleas.

This is an action brought, under the statute, by the plaintiff, to recover the sum of five thousand dollars, on account of the death of her husband, caused, as alleged by the plaintiff, by the carelessness of defendant's agents in conducting certain street railroad cars belonging to the defendant. Defendant denies carelessness or negligence on the part of its agents, and avers that Charles Huelsenkamp, the deceased, came to his death by reason of his own carelessness and negligence.

It appears from the evidence, that the accident occurred in the night time, on the Franklin avenne railroad track, and at a switch or turn-out on the road; that the deceased was on the car which was coming into the city from the Fair Grounds; that the car was very much crowded; that the deceased was standing on the steps of the platform of the car; and that whilst this car was passing another car of defendant, which was standing on the switch, the body of deceased was brought into contact with the said stationary car, and that he was thus crushed and killed. It was in evidence, that deceased, whilst standing on the steps of the moving car, was holding on to the iron railing of the window of the car, and that his body was swinging out some distance from the body of the car at the time, or just before, the accident occurred; that he was told by one of the witnesses that he was in a dangerous position--that he had better get farther in, or get off the car; and witness also testified that he could have avoided the danger if he had chosen to do so.

There was a conflict of testimony as to where the stationary car was standing on the switch, whether in the centre, or more to one end. There was conflict, also, as to whether the cars, in passing, would have touched each other; but the preponderance of testimony was, that they would have passed without touching. The distance between the tracks, at the centre of the switch, was three feet, two inches. There was no evidence to show that the driver knew that the deceased was on the car.

Upon the trial, the following instructions were asked by the plaintiff, and given by the court:

“The simple fact, that Huelsenkamp was on board defendant's car, will not authorize the jury to infer or conclude that he was a passenger for hire. But if they are satisfied from the evidence, that persons, without the previous consent of agents or servants of the defendant, were in the habit of getting on its cars and riding thereon, both outside and inside upon the platform and steps, and that, too, without reference to the number of persons so getting on and riding, and that defendant habitually collected the fare for carriage of such persons; and further, that Huelsenkamp got upon the defendant's car for the purpose of being carried as a passenger, then, in the absence of any prohibition against his becoming a passenger, the jury is justified in inferring there was a contract between the defendant and him, that the defendant would carry him as a passenger for the ordinary fare; and it is the right and duty of the jury to determine, from all the evidence in the case, whether there was any such contract between the defendant and Huelsenkamp; in other words, to determine whether he was a passenger for hire on defendant's car, or not.”

Also, the following:

1. If you find that deceased was, at the time of his death, the husband of plaintiff; and that defendant was a corporation and a common carrier; and that deceased was a passenger for hire in a car of defendant; and that deceased was carried as a passenger upon the steps of a car of defendant, by its agents, because there was no room elsewhere for him, in or about the car; and if, while the car upon which deceased was being carried, was passing another car of defendant, upon a turn-out in the road, the two cars came in collision with each other, or approached each other so near as to kill deceased by jamming him or crushing him between the said cars; and such catastrophe was caused by the least negligence, want of skill, or prudence, on the part of defendant's agents, in managing said cars, or either of them; and that deceased then and there exercised ordinary care and prudence as a passenger, then the jury should find for plaintiff, and assess damages at five thousand dollars. And, under the circumstances above stated, although the jury may believe that if deceased had used extraordinary care, and had been on the alert, and had been looking out ahead for danger, he might have avoided injury, yet his failure so to do furnishes no excuse for defendant, and its liability is not affected thereby.

2. If the jury find the agents of defendant were guilty of negligence in the managemeut of the cars of defendant, by reason of which two of defendant's cars came in collision with each other, or came so near each other on the road, at a place provided for the cars on the road to pass each other, by reason of which deceased was injured and killed; and that deceased was then a passenger on defendant's road; and that deceased was not guilty of any want of ordinary care and prudence, which directly contributed to the injury, then the defendant is liable in this suit.

3. Although the deceased may have been guilty of misconduct, or failed to exercise ordinary care and prudence, while a passenger on defendant's car, which may have contributed remotely to the injury or death of deceased, yet if the agents of defendant were guilty of miscon duct in the management of said cars, which was the immediate cause of deceased's injury and death; and with the exercise of prudence by said agents, said injury and death might have been prevented, the defendant is liable in this suit; and if the jury find for the plaintiff, they will assess the damages at the sum of five thousand dollars, and return a verdict for the plaintiff for that sum.

All of which said instructions, so asked by the plaintiff, and numbered 1, 2, and 3, were given by the court.

The following instructions were given for the defendant:

1. If Charles Huelsenkamp voluntarily took and placed himself in a dangerous or improper position on the car, when he might have taken a more safe place or position, and his death was caused by reason of his having placed himself in such a dangerous position, then the plaintiff cannot recover.

2. If it appear that Huelsenkamp was not a passenger at the time of the injury, the defendant is only bound to the use of ordinary care, and is responsible only for gross negligence. Ordinary care is that degree of care which a prudent man would exercise about his own affairs.

3. If it appear that Huelsenkamp was not a passenger, and that he did not, in any manner, by his own negligence, contribute to the injury, still the plaintiff cannot recover, unless it appear that the injury and death were caused by the gross negligence of defendant, or its agents.

Instruction No. 1, as above, was interlined by the court, as follows, “when he might have taken a more safe place or position,” and in that form it was given; to which defendant excepted.

The defendant asked the following instructions:

1. The mere fact that Huelsenkamp was being transported upon the car of defendant does not constitute him a passenger, unless it appear that he was being transported, with the knowledge and consent of defendant, or one of its agents, for a consideration, paid or to be paid, under some express or implied agreement between the parties.

4. Whether Huelsenkamp was or was not a passenger, if he by his own negligence in any way contributed to the injury, the plaintiff cannot recover.

5. Whether the deceased, Huelsenkamp, was or was not a passenger, he himself was bound to the use of ordinary care; and if the injury was the result of the common fault of both parties, the plaintiff cannot recover.

6. If it appear from the evidence, that the car standing on the switch was in such a position as that the moving car could pass it without colliding; that the horses in the moving car were going at a moderate gait; that Huelsenkamp had placed himself, at the time of the injury, in a dangerous or improper position on the car, and that in consequence of his occupying that position the injury occurred from which the death ensued, then the jury must find for the defendant.

7. If it appear that Huelsenkamp wilfully, and without the consent of defendant's agents, placed himself on the car in a dangerous position, from the result of which the injury and death occurred, then defendant is not liable, unless it appear to the satisfaction of the jury that defendant's agent saw that Huelsenkamp was in such a dangerous position, and willfully and designedly contributed to the injury.

8. In this action the plaintiff cannot recover, unless it appear from the evidence, that, in case death had not ensued, Huelsenkamp himself would have had a right of action against the defendant for the damages occasioned by the injury.

9. If Charles Huelsenkamp voluntarily placed himself in a dangerous or improper place or position on the car, and the cars of defendant were so managed or conducted, that he could not have been injured in a proper place thereon, and that his death was caused by reason of his having taken such dangerous and improper position, plaintiff cannot recover.

All of which instructions, so asked by the defendant, as above, were refused by the court.

A verdict was found for the plaintiff; a motion for a new trial made by the defendant, and overruled by the court; an appeal asked and granted.

Sharp & Broadhead, for appellant.

This case has once before been before the Supreme Court of Missouri--34 Mo. 45; but the main point presented was not decided. In the opinion delivered in that case by the court, it was held, that the court below had erred in undertaking to determine, by...