Jackson v. Grand Ave. Ry. Co.

• Decision Date: 21 November 1893
• Parties: JACKSON v. GRAND AVE. RY. CO.
• Court: Missouri Supreme Court

24 S.W. 192

118 Mo. 199

JACKSON v. GRAND AVE. RY. CO.

Supreme Court of Missouri, Division No. 2.

November 21, 1893.

CARRIERS — INJURIES TO PASSENGERS — EVIDENCE — INSTRUCTIONS — DEGREE OF CARE.

1. In an action against a street-car company for injuries received by a passenger in alighting, by a sudden starting of the car, it is competent for defendant to show that, by an ordinance under which its cars were operated, no car was allowed to stop for passengers, at the intersection of streets, until it had reached the further side of the street crossed, and that, when plaintiff undertook to alight, the car had only slackened its speed to await a signal from the flagman.

2. It is within the discretion of the court to exclude evidence constituting plaintiff's case in chief, after the evidence for the defense is closed.

3. Where a street car is stopped for a signal from the flagman before it reaches a crossing, and a passenger is about to alight, with the knowledge of the conductor, it is the latter's duty to give the passenger a reasonable opportunity to get off before starting the car.

4. In an action by a passenger against a street-car company for injuries sustained by a sudden starting of the car while plaintiff was in the act of alighting, an instruction that "defendant owed to plaintiff the duty of exercising the utmost care and vigilance to permit her to alight in safety" was properly refused, as it states the degree of care required of defendant too broadly.

5. A special instruction is properly refused, where its substance has already been given.

6. Where a street-railway company adopts and publishes reasonable regulations as to where its cars shall stop for leaving and taking on passengers, the passengers are bound to take notice of such regulations.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Action for personal injuries by Daphne Ann Jackson against the Grand Avenue Railway Company. Defendant had judgment, and plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by GANTT, P. J.:

The appellant, a married woman 52 years old, brought this action against the defendant, a street-car company operating a cable railway upon Walnut, Fifteenth, and other streets, in Kansas City, Mo., for damages resulting from a fall from one of its cars, and caused, as she alleges, by the sudden and negligent starting of the car just as she was alighting on Walnut street, near Ninth street. The injury occurred September 24, 1889. There was a verdict for defendant in the circuit court.

The answer was: (1) A general denial. "(2) That plaintiff so negligently and carelessly conducted herself, in alighting from said street car, that the accident and injury were occasioned thereby, wholly or in part, and but for said negligence and carelessness of the plaintiff, said accident and injury would not have occurred. (3) That in and by section No. 848 of an ordinance of the city of Kansas City numbered 41,982, approved May 12, 1888, entitled `Revised Ordinance of the City of Kansas,' it is provided as follows: `No car, or the animals drawing the same, shall be stopped on any street crossing. When the conductor or driver of any car is requested to stop at the intersection of streets to leave or receive passengers, he shall stop such car so as to leave the rear platform thereof slightly over the crossing.' And defendant further states that at the time of said accident, and for a long time prior thereto, the defendant kept posted in said street cars a notice to the effect that, pursuant to the city ordinance, its cars would stop on further street crossings, only. And this defendant further states that the street car mentioned in the petition did not stop on the south side of Ninth street for the purpose of permitting plaintiff to alight therefrom, and plaintiff had no right to suppose that said car would stop at said place for the purpose of permitting her to alight therefrom. And this plaintiff further states that the cars of this defendant are operated on Walnut street, and run north and south, and that Ninth street is occupied by a cable street railway known as the Kansas City Cable Railway Company, on which its cars are operated, running east and west, thus making a cable street-railway crossing at said Ninth and Walnut streets; that a very large number of cars pass east and west on said Ninth street, and north and south on said Walnut street, at said place of crossing, besides a great many wagons, carriages, and other vehicles; and that said place of crossing is one of great danger, in the operation of street cars, and is so dangerous as to make it necessary to keep a flagman standing at said crossing for the purpose of signaling street cars and other vehicles when two cross the same, and for the purpose of preventing street cars and other vehicles from crossing said street at a dangerous time; and that it is absolutely necessary, for safety of persons using said street, and riding in the cars and other vehicles on said streets, that the street cars should cross the same when signaled to do so; and that, for the safety of such persons, it is necessary that said street cars be not under the control of the conductor, in crossing said point, but that the same be under the control of said flagman, as aforesaid; and that the car of the defendant company, at the time of the accident complained of, was undertaking to cross said Ninth street at the signal of the flagman standing there for that purpose, and, when the plaintiff attempted to alight therefrom, was in the act of being moved forward for the purpose of crossing said street, and would have stopped on the north side of said Ninth street, with the rear platform slightly over the crossing, for the purpose of permitting the plaintiff to alight therefrom; and that she could have alighted therefrom in perfect safety at said place. And this defendant states that said car either did not stop at the south side of Ninth street, or, after it did stop, had already been put in motion, when the plaintiff attempted to alight therefrom. Wherefore, defendant states that plaintiff was guilty of contributory negligence in attempting to alight from said car at the time and in the manner that she did, and that the injury was occasioned thereby, either wholly or a part." The reply is as follows: "Now comes the plaintiff in the above-entitled case, and denies each and every allegation in the amended answer of defendant contained."

On the day of the accident, the plaintiff, a negro woman, and her husband, boarded one of defendant's cars on Fifteenth street for the purpose of riding to Ninth and Walnut streets, and informed the conductor, when they paid their fare, that they desired to get off at Ninth street. At Ninth street, defendant's tracks and cable cross the tracks and cable of the Kansas City Cable Railway Company, commonly called the "Ninth Street Line." Both lines have double tracks. The defendant's tracks run north and south, and the Ninth Street Company's tracks run east and west. The crossing of each other's tracks at Ninth street with so many cars, estimated in the brief at 180 in one hour, compelled the companies to keep a flagman on the crossing, whose signals should control the movement of the cars across the tracks. As already said, the cars on each of the roads are operated by endless cables propelled from a power house, and running in a conduit beneath the surface of the street. A grip extends from the car through a slot in the center of the track, and the car is propelled by applying the grip to the moving cable or rope. The cables are made of wire, and are about one inch and one-half in thickness. At the street crossing in question, the cable rope of the Ninth Street Line is the upper one, and the cable of the defendant is required to go under it. To accomplish a crossing, it is necessary that the grip on the defendant's car should be released before the intersection is reached; otherwise, the grip of defendant would collide with the cable rope of the Ninth Street Line, and great damage ensue. The two companies maintained a flagman here, and posted him in the center of the crossing. The Ninth street cars, coming from the west, are compelled to climb a steep grade before reaching the crossing, and are completely hidden from view from any point on Walnut north or south of the crossing by the large office buildings of Keith & Perry and Hall. When they leave the crossing, they again climb another heavy grade to Grand avenue, the next street east; so that it is apparent that a defective or broken grip might precipitate a Ninth street train upon defendant's cars crossing Ninth and Walnut if especial care is not taken to warn the trainmen on each line of the approach of cars on the other. About 65 feet south of the south track of the Ninth Street Line, the north-bound cars of defendant slow up, and, if necessary, come to a complete stop, to await the flagman's signal. When the signal is given, the car is moved about 20 or 30 feet with the grip applied to the cable, to gather momentum sufficient to run it across the street; and just before entering upon the crossing the grip is detached, or, as the motormen call it, they make a "let go," and, by means of the motion already obtained, it crosses the street. The cable of defendant's road is deflected beneath the cable on the Ninth Street Line until it reaches the north side of Ninth street, when it comes again to its proper level, and, when the car reaches the north side, the grip again attaches to the cable, and the car proceeds. By an ordinance of Kansas City, it is provided: "No car, or the animals drawing the same, shall be stopped on any street crossing. When the conductor or driver of any car is required to stop at the intersection of streets to leave or receive passengers, he shall stop such car so as to leave the rear platform thereof slightly over the crossing." There was...