Johnson v. St. Louis & S. Ry. Co.

• Decision Date: 18 March 1903
• Citation: 173 Mo. 307,73 S.W. 173
• Court: Missouri Supreme Court
• Parties: JOHNSON v. ST. LOUIS & S. RY. CO.

73 S.W. 173

173 Mo. 307

JOHNSON v. ST. LOUIS & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 18, 1903.

CARRIERS—INJURY TO PASSENGERS—NEGLIGENCE—PLEADING—EVIDENCE— INSTRUCTIONS.

1. The negligence charged by a petition in an action for injury to a passenger by derailment of a street car, alleging that the "running gear, that is to say, the wheels, axles, and other machinery, by means of which the said car ran along the said track, were defective and out of order, and unfit for the purpose of supporting the said car on the said track," and that though defendant knew, or should by the exercise of ordinary care have known, of such defective

running gear, it "ran the said car along the said track, and into said curve at a high rate of speed," was general and not specific negligence, so that there was no failure of proof by want of evidence of defect in the running gear of the car.

2. Evidence, in an action for injury to a passenger by derailment of a street car, held sufficient to authorize the jury to find that the car left the track because of defects in the flange of a wheel, and because the car was run around a curve at the usual rate at which sound cars are run around it.

3. Any generality in an instruction as to negligence is cured by the other instructions, which limit plaintiff's right to recover to the specific negligence charged in the petition.

4. Defendant is not entitled to an instruction that the jury must be guided solely by the evidence, and should not be governed by sympathy for plaintiff, nothing having transpired to indicate that the jurors were unmindful of their sworn duty.

Appeal from St. Louis Circuit Court; Jno. A. Talty, Judge.

Action by Mary Johnson against the St. Louis & Suburban Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

This is an action for damages for personal injuries received by the plaintiff on November 17, 1901, near Raymond avenue, in St. Louis, while she was a passenger on one of the defendant's cars, in consequence of a derailment of the car. There was a verdict for the plaintiff for $800, and the defendant appealed.

The negligence charged in the petition is as follows:

"Plaintiff states that on the 17th day of November, 1900, plaintiff was riding as a passenger on a west-bound car belonging to defendant; that at said time the running gear of said car, that is to say, the wheels, axles, and other machinery, by means of which the said car ran along the said track, were defective, and out of order, and unfit for the purpose of supporting the said car on the said track; that the said car was, at the said time, by reason of the said defective running gear, in a dangerous and unsafe condition, and unfit for the purpose of carrying passengers safely along said track; that the defendant, its officers, agents, and servants in charge of the said railway, and in charge of and operating said street car, knew, or by the exercise of reasonable care and diligence could have known, that the said running gear of the said car was then and there defective and out of order, and that the said car was in a dangerous and unsafe condition, and unfit for the purpose of carrying passengers safely along said track; that though the defendant and its said officers, agents, and servants knew, or by the exercise of reasonable care and diligence could have known, of the unsafe condition of the said car as aforesaid, they permitted the plaintiff, who was ignorant of the said unsafe condition, to remain on the said car without warning her of the danger of riding on the said car; and though the defendant and its said officers, agents, and servants knew, or by the exercise of reasonable care and diligence could have known, of the defective running gear as aforesaid, they carelessly, recklessly, and negligently ran the said car along the said track, and into the said curve aforesaid, at a high rate of speed; that as the said car approached the said point aforesaid, that is to say, when the said car was at or near the intersection of Cabanne avenue and the said railway track, and between said Cabanne avenue and Raymond place, and on said curve of said track, because of the said defective running gear and because of the want, care, and precaution on the part of the defendant, its officers, agents, and servants in the premises, the said car left the said track, and, after running about 50 feet along the ties and ground, the said car ran against a large pole, erected about 6 feet to the north side of said track, striking the said pole with great force and violence."

The answer is a general denial.

The case made is this: The plaintiff became a passenger for hire on the defendant's car, at the corner of Sixth and Locust streets. The car proceeded safely and without trouble until it arrived at a point in West Morgan street, near the West End Post Office, where the tracks leave the public street and run on a curve onto the defendant's private right of way. In turning the curve the car ran roughly, bumped along, and created the impression that it was off of the track. The car was stopped, and the conductor and motorman examined the car. One of the passengers (James E. Crabb, who was a witness for the plaintiff) asked the conductor what was the matter, and he replied "that the flange of the wheel was broken." This witness further testified that "one of the wheels had apparently got off the rail. Looking out, I could see that it was bulging over the rail, but it was not sufficiently so to prevent the motion of the car, and the motorman said `she will go,' and she went." The defendant complains bitterly because the witness was allowed to testify to what the conductor and motorman said about the car at that time. The car was started, and after running about 50 feet it was stopped, and a further examination was made. Then it was started again, and it ran with a "jumping motion," an "irregular movement," "which became marked at curves," with a "rocking motion," as the several witnesses described it. When the car reached Sarah street it was stopped. The conductor and motorman got off, and reported to an inspector the condition of the car. The three examined it, and the inspector said to the motorman and conductor, "Take her carefully," "Take it slow." The car proceeded at the usual speed until it reached Raymond avenue, and, as the motorman testified, "when they went around the curve at Raymond avenue the car was going eight or nine miles an hour, just about the usual rate at which cars run around curves." The "irregular movement" of the car became very marked as it was turning the curve, and continued for about 50 or 60 feet, when the car left the track, ran about a car length on the cross-ties, then left the ties and ran into a 15-inch telegraph pole that stood about 6 feet from the track, and broke it down, and the plaintiff was injured.

The inspector who examined the wheel at Sarah street testified that he found a chip in the flange of one of the front driving wheels, about an inch and a half long and about an eighth of an inch thick; that such a chip would cause a roughness in the movement of the car in going around a curve, but that such a chip would create no danger of derailment, and he decided that the flange was large enough to hold the car on the track even with such a chip in it; that he rubbed the wheel off with his hand, and looked at it, and did not test it with a hammer, as they commonly do when a car is in the shed; that the wheel seemed to be perfectly sound, there was no evidence of any crack in it, and it was in perfect shape except for the chip. The master mechanic of the defendant testified that he visited the scene of the accident, and found about seven inches of the flange broken out, and that the pieces of the...