Ilges v. St. Louis Transit Co.

• Decision Date: 17 November 1903
• Citation: 102 Mo. App. 529,77 S.W. 93
• Court: Missouri Court of Appeals
• Parties: ILGES v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

77 S.W. 93

102 Mo. App. 529

ILGES v. ST. LOUIS TRANSIT CO.^*

Court of Appeals at St. Louis, Missouri.

November 17, 1903.

STREET RAILWAYS — INJURY TO PASSENGER — DUTY OF CARRIER — DAMAGES — INSTRUCTIONS.

1. Evidence of a passenger on a street car that she was thrown from the body of the car into the street by a sudden lurch thereof is sufficient to authorize a finding that there was such an unusual and severe lurching thereof as to constitute negligence.

2. An instruction in an action for injury to a passenger on a street car that a common carrier is bound to use the highest degree of care for the safety of its passengers, followed by an instruction that if the motorman was negligent, and his negligence caused the car to lurch, throwing plaintiff into the street, plaintiff could recover, unless she was not exercising ordinary care, is not erroneous because the term "highest degree of care" is not defined.

3. An instruction that, if the jury find for plaintiff, they should assess her such damages as they think, under the evidence, would compensate her, etc., is not erroneous because using the word "think" instead of "believe" or "find."

Appeal from St. Louis Circuit Court; J. A. Blevins, Judge.

Action by Margaret Ilges against the St. Louis Transit Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. E. E. Wood, for respondent.

BLAND, P. J.

On the 15th day of August, 1902, the plaintiff was a passenger on one of defendant's street cars running south on Grand avenue, in the city of St. Louis. She was either thrown from the car into the street by a sudden jerk or lurch of the car forward, or stepped off the car while it was in motion, and fell into the street. The fall, however occasioned, injured her. For these injuries she recovered a judgment for $2,833 in the circuit court. From this judgment the defendant duly appealed.

The petition counts upon six distinct acts of negligence on the part of defendant, but the court confined the attention of the jury to but one, comprehended in the following instruction given for the plaintiff, to wit: "If the jury believe from the evidence that the motorman in charge of defendant's car was negligent, and that his negligence caused the car to lurch, and that said lurch threw plaintiff into the street, causing injuries to her, then they should find in favor of the plaintiff and against the defendant, unless they find from the evidence that the plaintiff was not at the time exercising ordinary care for her own safety." All the other allegations of negligence were taken from the jury by instructions given for the defendant. The answer was a general denial, and an allegation that plaintiff's injuries were occasioned by her own negligence in stepping off of a moving car.

The evidence is that the car on which plaintiff was a passenger was a four-wheel summer car, the trucks being in the center. and that the car rocked when running on an uneven track. Plaintiff got on the car at Florissant avenue to go south to where Olive street crosses Grand avenue. When she boarded the car there were only a few passengers on it, but, before reaching her place of destination, the car, which was open on both sides and at each end, with running boards on either side, became very crowded with passengers. The seats were all full, and the end platforms, and some passengers were standing in between the seats inside the car, and the running boards were crowded with as many as could hang on. When the car reached Washington avenue, one block north of Olive street, it slowed up, and two or three young men stepped from the running board into the street. At this juncture plaintiff testified that she arose from her seat near the west side of the car to press the button to signal the motorman to stop the car at the Olive street crossing, that she might alight; that when she arose she found the car so crowded that she could not reach the button in the stanchion at the end of the seat where she had been seated, and so she reached around and over some one to touch the button in the stanchion in front of her, and while she was in the act the car gave a sudden lurch, and threw her into the street, severely injuring her. She is corroborated by the evidence of other witnesses. On the part of the defendant, the evidence of several disinterested witnesses, who were passengers on the same car, is that plaintiff arose from her seat, pressed her way around some passengers, and stepped on the running board while the car was running at a speed of from five to seven miles an hour, and fell into the street; that the car did not start suddenly forward after slowing up; that it did not lurch, but was running as such cars ordinarily move.

1. The contention of the defendant that there is a failure of proof is not borne out by the evidence. Plaintiff's evidence that she was thrown from the body of the car into the street, if believed by the jury, must have established in their minds, beyond peradventure, that there was an unusual and very severe lurching or jerking of the car to cause the plaintiff's misfortune; and we think the court correctly overruled the demurrer to the evidence offered at the close of plaintiff's evidence, and again at the close of all the evidence.

2. The first instruction given for plaintiff is as follows: "The court instructs the jury that a common carrier of persons, such as a street car corporation, is bound to use the highest degree of care for the safety of its passengers." Defendant contends, not that the instruction erroneously declares the law in the abstract, but that the term "the highest degree of care" should have been defined, or the instruction modified, and cites Dougherty v. Missouri R. Co., 97 Mo. 647, 8 S. W. 900, 11 S. W. 251; Smith v. C. & A. Ry. Co., 108 Mo. 243, 18 S. W. 971; Jackson v. Grand Ave. Ry. Co., 118 Mo. 199, 24 S. W. 192; and Freeman v. Railway, 95 Mo. App. 94, 68 S. W. 1057 — in support of its contention. Dougherty v. Missouri R. Co., supra, was a suit by a passenger for damages caused by a sudden, violent start of the defendant's horse car. Instruction No. 3 given...