Jacobson v. St. Louis Transit Company
| Decision Date | 12 April 1904 |
| Parties | JACOBSON, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. D. G. Taylor, Judge.
The plaintiff, a widow approaching seventy years of age, about eight o'clock in the evening, May 23, 1902, took passage at Delmar avenue, on a Taylor or Euclid avenue car for Laclede avenue, on her way to her residence on the latter street. Hearing the conductor announce the name of the street the car was nearing, and believing she had passed the street at which she wished to get off, she arose, asked the conductor what street he had called and upon his replying Chouteau avenue, and that Laclede had been passed, she answered him she had gone too far and had told him she wished to get off at Laclede avenue. While talking, the car stopped and concluding with the statement on her part that she had better get off, she proceeded, and while on the first step of the platform of the car, and without signal, it started with a jerk and threw her to the ground, causing her serious injuries. Such was the description by plaintiff of the occurrence; but the testimony was conflicting, whether the car had in truth stopped after passing Laclede avenue prior to plaintiff's attempt to alight, and whether merely the speed of the car had not been reduced to two miles per hour approaching the switch at King's Highway and Chouteau avenue, the regular stopping point being around the curve on Chouteau avenue.
The substantial portion of the statement of plaintiff's cause of action was as follows:
"Plaintiff further alleges that on or about May 23, 1902, the said defendant, by its agents and servants in charge of one of its cars, received the said plaintiff at or near the intersection of Euclid and Delmar avenues or streets in the city of St Louis, Missouri, as a passenger on the said car, and for a valuable consideration by the plaintiff paid to the defendant, its agents and servants in charge of said car said defendant undertook and agreed with plaintiff to carry her safely upon its said car as such passenger, to her point of destination upon defendant's aforesaid lines of street railway, and to then allow her a reasonable time in which to alight in safety from said car.
"Plaintiff alleges that notwithstanding said facts said defendant unmindful of its said agreement, and of its duty in the premises, did, by its servants in charge of its said car, whilst the said car was at a standstill at a point at or near the intersection of Chouteau avenue or street and King's Highway street or boulevard, in said city of St. Louis, Missouri, and whilst the said plaintiff, as defendant, its agents and servants well knew, was in the act of alighting from the defendant's said car, and before she had reasonable time to safely alight therefrom, so carelessly and negligently caused the said car to move and start forward with a sudden lurch and jerk, so that said plaintiff was in consequence of such careless and negligent starting of said car, thrown with great force and violence onto and upon the ground of said public street--whereby she was greatly injured," concluding with allegation of expenses incurred for remedies and medical service, and prayer for damages.
Defendant answered pleading specially, in addition to its general denial, contributory negligence in attempting to alight from a moving car, at a time and place, where it had not been stopped for the purpose of allowing passengers to alight, and at a place, not a usual stopping place for that purpose; and alighting after being warned not to do so, and after being told to wait, that the car would stop as soon as it got around the curve. From a verdict for plaintiff, defendant, after ineffectual effort for new trial, has appealed.
Judgment reversed and cause remanded.
Boyle, Priest & Lehmann, George W. Easley and Edward T. Miller for appellant.
(1) The defendant's instruction, offered at the close of all the evidence, asking the court to instruct that plaintiff was not entitled to recover, should have been given. The undisputed testimony shows: First. That the place at which plaintiff attempted to alight was not a regular stopping place for discharging passengers. Second. That the motorman in charge of the movements of the car knew nothing of plaintiff's position on the car. Third. That no signal of any kind was given by the conductor to the motorman until after the plaintiff had been injured. Fourth. That the car had not stopped for the purpose of discharging passengers. The negligence, and the only negligence, charged in the petition is, that while the car was at a standstill and plaintiff was in the act of alighting therefrom, as defendant's servants well knew, they carelessly and negligently started the car forward, and plaintiff was thrown and thereby injured. Plaintiff is confined to the specific act of negligence charged. She can recover upon no other. Huston v. Taylor, 140 Mo. 263; Bartley v. Railroad, 148 Mo. 124; Pryor v. Railway, 85 Mo.App. 367; Raming v. Railroad, 157 Mo. 506; Hite v. Railway, 130 Mo. 136; Link v. Vaughn, 17 Mo. 585; Duncan v. Fisher, 18 Mo. 403; Beck v. Ferrara, 19 Mo. 30; Robinson v. Rice, 20 Mo. 229; Harris v. Railroad, 37 Mo. 307; Ensworth v. Barton, 60 Mo. 511; Eyerman v. Cemetery Ass'n, 61 Mo. 489; Clemens v. Yates, 69 Mo. 623; Waldhier v. Railroad, 71 Mo. 514; Harty v. Railroad, 95 Mo. 368; McManamee v. Railroad, 135 Mo. 440. (2) Plaintiff's instruction No. 2 does not correctly declare the law and should not have been given. The first paragraph of the instruction attempts to define defendant's duty towards its passengers at a regular stopping place. It has no application to the facts in this case. No such duty existed towards the plaintiff as stated in this instruction. She was alighting at a point where the car had stopped, as she says, and as all the other evidence shows was merely going at reduced speed, for the purpose of making the switch. It was not a regular stopping place, and, even if the car stopped, defendant owed the plaintiff no such duty as that imposed on it by the first paragraph of the instruction. Jackson v. Railroad, 118 Mo. 199; Pryor v. Railway, 85 Mo.App. 367; Bachrach v. Railroad, 54 N.Y.S. 958; Kohler v. Railroad, 99 Wis. 33; Nellis, Str. Surf. Railroads, p. 484; Neville v. Railway, 158 Mo. 293; Railroad v. Mills, 105 Ill. 63. (3) If plaintiff's contributory negligence be once conceded, as it is in this instruction, under the pleadings in this case, no amount of willfulness or recklessness, or willful or reckless disregard of plaintiff's safety, on the part of the defendant's servants, will permit a recovery. Kellney v. Railroad, 101 Mo. 67; Holwerson v. Railroad, 157 Mo. 216; Tanner v. Railway, 161 Mo. 497; Van Bach v. Railway, 71 S.W. 358; Guyser v. Railroad, 73 S.W. 584.
Thomas B. Harvey and Richard F. Ralph for respondent.
(1) The true rule of law is that if the car stops, or even slacks up (so as to indicate it is about to stop) after the announcement of a station or stopping place it behooves the carrier not to indulge in any sudden jerks of his train which might injure passengers reasonably acting on the expectation of alighting. McGee v. Railway, 92 Mo. 208; Taber v. Railroad, 71 N.Y. 489; McNulta v. Ensch, 134 Ill. 46; Edgar v. Railroad, 11 Ont. App. 452; Moorman case, 78 S.W. 1089; Whittaker v. Railroad, 5 C. P. (L. R.) 464, note 3; Gadsden Co. v. Causler, 97 Ala. 235. (2) Defendant imagines that the first part of that instruction applies only "at a regular stopping place." We deny that. It applies to such facts as here appear, and it applies wherever the car stops, after an announcement of a street or stopping place, when a passenger undertakes to alight in the immediate view and presence of the conductor having charge of the car. Dawson v. Transit Co., 76 S.W. 689; Brassell v. Railroad, 84 N.Y. 241; Railroad v. White, 88 Pa. St. 327. (3) Plaintiff's second instruction required the jury to find that the car "was standing still" when plaintiff "attempted to alight from said car." As to the degree of care, in such circumstances, required toward passengers, the law of Missouri has been for years emphatically declared as stated in said instruction. Gilson v. Railroad, 76 Mo. 282; Clark v. Railroad, 127 Mo. 197. (4) From the prominence given (in appellant's motion for rehearing) to plaintiff's second and fourth instructions we are warranted in inferring that the court may possibly be in doubt lest something is wrong in the phraseology thereof. We believe, however, they can be successfully vindicated as applied to the facts in this case. (5) It is a proposition extremely well established in Missouri that a call for a finding of an immaterial or unnecessary fact (where the essential facts are also required to be found) is not reversible or prejudicial error. Houx v. Batteen, 68 Mo. 84; Wright v. McPike, 70 Mo. 175; State v. Ware, 69 Mo. 332; Gaty v. Sack, 19 Mo.App. 477; Monson v. Rouse, 86 Mo.App. 97.
REYBURN, J. (after stating the facts.)
1. No complaint is made by defendant, nor any error assigned by it in the course of the trial, except to and in the instructions refused and given. The charge to the jury consisted of three instructions at instance of plaintiff, four at request of defendant, and one asked by defendant and given in modified form. The only instruction wholly refused was the imperative direction to find for defendant under the pleadings and all the evidence. The ruling of the trial court in rejecting the latter instruction, which appears to have been offered at close of all the evidence, is assailed upon...
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