Joyce v. Metropolitan St. Ry. Co.

• Decision Date: 31 March 1909
• Parties: JOYCE v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

118 S.W. 21

219 Mo. 344

JOYCE v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

Rehearing Denied April 13, 1909.

1. JURY (§ 92) — COMPETENCY OF JURORS — DISCRETION OF COURT—BUSINESS TRANSACTIONS WITH PARTY.

In an action against a street car company, one is not incompetent to sit as a juror because he is the agent of a railroad company, and as such agent solicits business from street railroads, and defendant is one of the best patrons of his road, and he was desirous of keeping the good will of defendant, and his rejection on that ground on a challenge for cause is an abuse of judicial discretion.

2. CARRIERS (§ 317)—INJURY TO PASSENGER— EVIDENCE—NEGLIGENT CONSTRUCTION AND MAINTENANCE OF RAILING.

In an action against a carrier for injuries received by a passenger who was caught between the car and a railing parallel to the track extending over a viaduct, evidence is not admissible to show how similar viaducts are protected by railings in other cities, as the question in issue was whether the construction and maintenance of this particular railing was negligence, which was a question to be decided from evidence showing its construction.

3. APPEAL AND ERROR (§ 1064)—HARMLESS ERROR—INSTRUCTIONS.

In an action against a street car company for injuries to plaintiff while attempting to board defendant's car by being caught between the car and a railing parallel with the track across a viaduct, the court instructed that if plaintiff attempted to get upon defendant's car, and that he had a transfer in his possession entitling him to be carried as a passenger on that car, and that it was his intention to tender such transfer to defendant in payment of his fare, and that the car, when plaintiff attempted to board the same, was standing at the usual place to receive passengers, the plaintiff was a passenger of defendant. Held that, while it was unnecessary to have instructed with reference to the transfer, as a passenger intending to pay cash has the same right as one with a transfer, yet the error was not prejudicial.

4. CARRIERS (§ 321)—INJURIES TO PASSENGERS — ACTIONS —INSTRUCTIONS.

In an action against a street car company for injuries received by a passenger who was caught between the car and a railing extending parallel with the track over a viaduct, the court instructed that, if the jury found that plaintiff was a passenger, defendant was bound to exercise the highest reasonable practicable degree of care of very prudent men engaged in the street railway business to carry and receive plaintiff in safety, and any failure on its part was negligence, and that if the jury found that defendant negligently allowed the railing to remain dangerously close to the front of passing cars, and that defendant's servants controlling the car negligently failed to stop the car a reasonably sufficient time to permit plaintiff to get upon the car in safety, and that defendant's servants negligently started the car forward when they knew or should have known that plaintiff was getting on the car, and that plaintiff was injured thereby, and if plaintiff was at all times exercising for his own safety, such care as a reasonably prudent man would exercise under the same circumstances, the verdict should be for plaintiff. Held, that while the jury might infer from the instruction that the same degree of care was required of defendant in the construction of its platform and railing as in receiving and carrying a passenger, yet the instruction taken as a whole is not misleading.

5. CARRIERS (§ 286)—PASSENGERS—CARE REQUIRED IN CONSTRUCTION OF PLATFORMS AND RAILINGS.

It is the duty of a carrier to exercise ordinary and reasonable care in the construction and maintenance of station platforms and railings, including a railing extending from the end of a platform parallel with the track across a viaduct.

6. CARRIERS (§ 348)—PASSENGERS—ACTIONS FOR INJURIES—INSTRUCTIONS.

In an action against a carrier for injuries to a passenger while attempting to board a street car by being caught between the car and a railing extending from the station platform parallel with the track across a viaduct, an instruction requested by defendant that if the jury found that, when the car started, plaintiff was standing on the platform of the viaduct with his hand holding onto the hand rail of the car, intending to board such car, and that after the car started, and while it was in motion, plaintiff attempted to get upon the car and was injured, that their verdict must be for defendant, was properly refused.

7. CARRIERS (§ 348)—PASSENGERS—ACTIONS FOR INJURIES—INSTRUCTIONS.

In an action against a carrier for injuries to a passenger in attempting to board a car, there was evidence that, when the car started, plaintiff was some three feet from it, and did not have hold of it, and that he attempted to board it after it was in motion. Held, that an instruction that if plaintiff attempted to get upon the car while it was in motion he assumed the risk of danger, and that his injuries resulting therefrom were caused by his own negligence

and the verdict should be for defendant, was improperly refused.

8. CARRIERS (§ 320)—PASSENGERS—ACTIONS FOR INJURIES—QUESTION FOR JURY.

Evidence, in an action against a carrier for injuries received while attempting to board defendant's car, held sufficient to carry the case to the jury.

Appeal from Circuit Court, Jackson County; Jno. G. Park, Judge.

Action by Thomas J. Joyce against the Metropolitan Street Railway Company for injuries received by plaintiff while attempting to board one of defendant's cars. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The court gave plaintiff's instruction No. 1, that if plaintiff attempted to get upon defendant's car, and that he had a transfer in his possession entitling him to be carried as a passenger on that car, and that it was his intention to tender such transfer to defendant in payment of his fare, and that the car at the time plaintiff boarded the same, or attempted to board the same, was standing at the usual and ordinary place for defendant's cars to stop to receive passengers, the plaintiff was a passenger of defendant.

Instruction No. 2 was that, if the jury find that plaintiff was a passenger on defendant's car, defendant owed plaintiff the duty of exercising the highest reasonable practicable degree of care of very prudent men engaged in the street railway business to carry and receive plaintiff in safety, and any failure on its part was negligence; and that if the jury find that defendant negligently allowed the railing mentioned in the evidence to remain dangerously close to the front of passing cars, and that defendant's servants controlling the car mentioned in the evidence negligently failed to stop the car a reasonably sufficient length of time to permit plaintiff to get upon the car in safety, and negligently started the car forward when they knew or should have known that plaintiff was getting on the car, if he was getting on the same, and that plaintiff was injured thereby, and if plaintiff was at all times exercising ordinary care for his own safety, that is, such care as a reasonably prudent man would exercise under the same circumstances, the verdict should be for plaintiff.

Instruction C requested by defendant and refused was that if the jury find that, when the car started, plaintiff was standing on the platform of the viaduct in question with his hand holding onto the hand rail of the car, intending to board such car, and that after the car started, and while it was in motion, plaintiff attempted to get upon the car and was injured, their verdict must be for defendant.

Ralph S. Latshaw and Henry J. Latshaw, Jr., for appellant. John H. Lucas, for appellee.

GRAVES, J.

Plaintiff, an alleged passenger, sues the defendant, a street railway corporation, for alleged negligence by which he was injured. Verdict for the plaintiff signed by nine jurors in sum of $5,000, and judgment accordingly. The accident occurred July 1, 1904, at Eighth and Main streets, in Kansas City, Mo., at which point the defendant maintained an overhead viaduct some 29 feet above Main street on Eighth street. The negligence charged is thus stated in the petition:

"Plaintiff states that on said July 1, 1901, at about 6 p. m. thereof, he was in the act of boarding one of defendant's said Independence avenue cars, east bound, on said viaduct, for the purpose of being carried on said car as a passenger to the eastern part of Kansas City; that while he was thus attempting to get upon said car he was injured, through the carelessness and negligence of defendant as hereinafter set forth.

"Plaintiff states that defendant carelessly and negligently built, maintained, and used said viaduct in a dangerous and defective condition in this, to wit: A certain iron railing or fence was allowed to be and to remain at the eastern end of the platform on said viaduct at or near the place where passengers were in the habit of getting on and off defendant's cars, with defendant's knowledge and consent; that said iron railing or fence was at all of said times by defendant carelessly and negligently allowed to be and remain in a dangerously close position and proximity to the front end of the cars and to the sides of the cars when passing said iron fence or railing, and said iron railing or fence was at all of the said times by defendant carelessly and negligently allowed to be and to remain in such a relative position to said cars that if a person should get between, or be knocked between, or fall between said iron fence and said passing car, there was not room enough for said car to pass without greatly injuring said person, all of which was well known to defendant, or by the exercise of due care and caution could have been known to defendant on July 1, 1904, and for a long time prior thereto.

"Plaintiff states that at the time he was getting...