Jordan v. St. Louis Pub. Serv. Co.

• Decision Date: 06 April 1937
• Docket Number: No. 23975.,23975.
• Citation: 103 S.W.2d 552
• Court: Missouri Court of Appeals
• Parties: ANNA F. JORDAN, RESPONDENT v. ST. LOUIS PUBLIC SERVICE COMPANY, A CORPORATION, APPELLANT.

103 S.W.2d 552

ANNA F. JORDAN, RESPONDENT v. ST. LOUIS PUBLIC SERVICE COMPANY, A CORPORATION, APPELLANT.

No. 23975.

St. Louis Court of Appeals. Missouri.

Opinion filed April 6, 1937.

Appeal from the Circuit Court of City of St. Louis. — Hon. Robert W. Hall, Judge.

AFFIRMED.

T.E. Francis, F.X. Cleary and S.G. Nipper for appellant.

(1) The court erred in refusing to give the instruction, offered by the defendant at the close of the plaintiff's case and again at the close of the whole case, for the reason that there is no evidence in the record authorizing or justifying the submission of the question of liability, for, under all the evidence, plaintiff failed to make a case of liability against the defendant. Carlson v. Wells, 276 S.W. 26; Wren v. Metropolitan Ry. Co., 125 Mo. App. 604; Moulton v. Boston Elevated Ry. Co., 236 Mass. 234; Ritchie v. Boston Elevated Ry. Co., 238 Mass. 473; Burns v. Boston Elevated Ry. Co., 244 Mass. 451; Rogers v. Boston Elevated Ry. Co., 246 Mass. 478; Lehrberger v. Public Service Co., 79 N.J.L. 134; 4 R.C.L. 1141. (2) The court erred in submitting the question of liability under instruction No. 1, given at the request of the plaintiff, because the evidence did not justify the submission of the issues contained in this instruction. See authorities under Point 1.

Eagleton, Waechter, Yost, Elam & Clark for respondent.

(1) Any error in the court's action in refusing to give appellant's instruction in the nature of a demurrer to the evidence at the close of plaintiff's case is not here reviewable, appellant having waived the point by proceeding with the trial and introducing evidence on its own behalf. Emory v. Emory (Mo. Sup.), 53 S.W. (2d) 908; Steffen v. Equitable Life Assurance Society (Mo. App.), 64 S.W. (2d) 302; Fenton v. Hart (Mo. App.), 73 S.W. (2d) 1034; Pritchett v. Northwestern etc. Ins. Co. (Mo. App.), 73 S.W. (2d) 815. (2) There was no error in the action of the trial court in refusing to give appellant's instruction in the nature of a demurrer to the evidence at the close of the entire case because: (a) The overcrowding of a street railway car, particularly the aisles and passageways which must be used for entrance and exit, creates a condition which human experience shows is attendant with danger or risk of injury to any passenger entering or leaving the car. (b) The danger or risk of injury, under such circumstances, is one that must reasonably be anticipated by the carrier and its agents and servants in charge of such an overcrowded car. (c) It is the duty of the carrier to use such methods and means as are necessary to protect the passengers from the danger and risk of injury so created by it. (d) The negligence of the carrier, its agents and servants, in creating a condition which exposes a passenger to such danger and risk from overcrowding, and in failing to take such reasonable precautions, consistent with the proper conduct of the business, as are necessary to protect the passengers from such danger and risk, is a question of fact for the determination of the jury. (e) There was ample evidence in the record permitting the jury to find the appellant to be negligent under this theory. 5 A.L.R. 1257 et seq.; Grubb v. Kansas City Ry. Co., 207 Mo. App. 16, 230 S.W. 675; Oesch v. St. Louis Pub. Service Co. (Mo. App.), 59 S.W. (2d) 758; 10 C.J. 966, 1075; Lobner v. Metropolitan St. Ry. Co., 79 Kans. 81, 101 Pac. 463; Hansen v. North Jersey St. Ry. Co., 64 N.J.L. 686, 56 Atl. 718; Walsh v. Chicago Ry. Co., 294 Ill. 586, 128 N.E. 647; South Covington & C. St. Ry. Co. v. Harris, 152 Ky. 750, 154 S.W. 35; Barney v. Hudson & M.R. Co. (N.J. Sup.), 145 Atl. 5; Egner v. Hudson & M.R. Co., 109 N.J.L. 367, 163 Atl. 554; Walker v. Connecticut Co., 91 Conn. 606, 100 Atl. 1063; Knaisch v. Joline, 138 App. Div. 854, 123 N.Y.S. 412; Chicago & Western Indiana R. Co. v. Newell, 113 Ill. App. 263; Morris v. Chicago Union Traction Co., 119 Ill. App. 527; Reem v. St. Paul City Railway Co., 77 Minn. 503, 80 N.W. 638; Kordick v. Chicago Rys. Co., 187 Ill. App. 74; Alton Light & Traction Co. v. Oller, 119 Ill. App. 181, affirmed 217 Ill. 15, 75 N.E. 419. (3) The appellant is not relieved of liability because of the mere fact that plaintiff tripped over the foot or leg of another passenger because: (a) The negligence of the carrier is not predicated upon the object being inanimate or otherwise, but is predicated upon its being placed, or permitted to remain, by reason of the overcrowding of the car, in a position which creates a danger or risk of injury. Heinecke v. Chicago Rys. Co., 279 Ill. 210, 116 N.E. 761, affirming 199 Ill. App. 399; Authorities cited under Point 2, supra. (b) In any event, if the negligence of appellant concurred with the act of another to result in plaintiff's injury, appellant would be liable therefor. Walsh v. Chicago Rys. Co., supra; Knaisch v. Joline, supra; Morris v. Chicago Union Transit Co., supra; State ex rel. City of St. Charles v. Haid, 325 Mo. 107, 28 S.W. (2d) 97; Byars v. St. Louis Pub. Service Co., 334 Mo. 278, 66 S.W. (2d) 894.

McCULLEN, J.

This is a suit for damages for personal injuries brought by respondent, as plaintiff, against appellant, as defendant. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant in the sum of $5,955.62. After an unavailing motion for a new trial, defendant brings the case to this court in due course by appeal.

Defendant owned and operated, as a common carrier of passengers for hire, a system of street railways in the City of St. Louis, Missouri, and as a part of said system it operated street cars upon numerous public open streets in said city, including Grand Avenue.

Plaintiff's amended petition alleged that on or about February 1, 1930, plaintiff was a passenger on a southbound Grand Avenue street car of defendant; that after she boarded said street car, defendant's agents and servants in charge thereof continued to take on passengers until said street car became overcrowded with passengers in its seats, aisles and passageways, and particularly in the passageway to the side exit of said street car, to such an extent as to be dangerous and unsafe for passengers and particularly plaintiff in riding thereon and in alighting therefrom; that when said street car stopped at the intersection of Grand Avenue and Cook Avenue at the usual place where defendant's southbound street cars received and discharged passengers, plaintiff was compelled by reason of the overcrowded condition of said street car to wedge and squeeze between other passengers who were standing in close proximity to each other in the passageway to the side exit of said street car, and while so doing and while attempting to alight from said street car and while exercising ordinary care for her own safety, she was caused to stumble against the feet or legs of another passenger and to fall from said street car to the street pavement, whereby she was injured.

The petition further alleged that plaintiff's injuries were the direct and proximate result of the negligence of defendant's agents and servants as follows: (1) permitting said street car to become so overcrowded as to be dangerous and unsafe to passengers, particularly plaintiff, in riding therein and in alighting therefrom; (2) failing to discover the overcrowded condition of said street car and to avoid injury to plaintiff by clearing the passageway to the side exit thereof so that plaintiff could have alighted with reasonable safety; (3) failing to assist plaintiff in going through the passageway to the side exit of said street car and in alighting therefrom so that she could have done so with reasonable safety; (4) that defendant's agents and servants in charge of said car knew, or by the exercise of due care would have known, that plaintiff was in imminent peril of being injured in attempting to alight from said street car, in time thereafter to have avoided injury to plaintiff by clearing the passageway to the side exit thereof or by assisting her in going through said passageway and in alighting from said street car.

The answer of defendant was a general denial.

Defendant assigns as error the action of the court in refusing to give instructions in the nature of demurrers to the evidence offered by defendant at the close of plaintiff's case and at the close of the whole case, and in giving to the jury instruction number 1 at the request of plaintiff. Defendant contends that the evidence did not justify the submission of the issues contained in said instruction.

Defendant did not stand upon its demurrer to the evidence at the close of plaintiff's case but went on and produced evidence. It, therefore, waived error, if any there was, in the court's action in overruling said demurrer. [Emory v. Emory (Mo. Sup.), 53 S.W. (2d) 908; Steffen v. Equitable Life Assur. So. (Mo. App.), 64 S.W. (2d) 302.] The question, therefore, before this court for determination is whether or not the court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence at the close of the whole case.

Plaintiff testified that at the time she was injured she was 32 years old, single and unmarried: that she was doing stenographic and secretarial work for a railroad company; that on the day in question she left her sister's home on Dodier Street in the City of St. Louis, where she was living, at about eight o'clock P.M., to go to a church on Grand Avenue between Cook and Finney Avenues; that she boarded a southbound Grand Avenue street car at Grand Avenue and Dodier Street, which was about ten blocks north of the church to which she was going; that she got on the front end of the street car and it was well filled with passengers; that there was a regular side exit in the middle of the car on the west side thereof as the car was traveling southwardly which was used by passengers alighting therefrom; that there were two...