Keppler v. Wells

• Decision Date: 18 February 1922
• Docket Number: No. 22383.,22383.
• Citation: 238 S.W. 425
• Parties: KEFPLER v. WELLS.
• Court: Missouri Supreme Court

238 S.W. 425

KEFPLER v. WELLS.

No. 22383.

Supreme Court of Missouri, Division No. 2.

February 18, 1922.

Motion for Rehearing Denied March 18, 1922.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

Action by William Keppler against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for defendant, a new trial was granted, and defendant appleas. Affirmed and remanded.

This action was commenced by plaintiff in the circuit court of the city of St. Louis, Mo on September 19, 1919, and on November 21, 1919, an amended petition was filed, on which the case was tried.

Said amended petition, after alleging that the United Railways Company of St. Louis is a Missouri corporation, that Rolla Wells in its receiver, and that plaintiff, on August 23, 1919, was a passenger on one of defendant's cars operated northwardly on Jefferson avenue in said city, alleges that when said car was approaching Lynch street, along said Jefferson avenue, plaintiff signaled to defendant's agent and servant to stop said car at the southeast corner of Lynch street and Jefferson avenue; that at said time, plaintiff was on the rear platform of said car, near the doors which are opened and closed by a lever, operated and controlled by defendant's servant from the back platform of said car; that while plaintiff was on the back platform of said car approaching the southeast corner of Lynch street and Jefferson avenue, and before reaching said corner, the doors of said car were thrown open by defendant's servant; that said car was caused to slow down and slacken its speed; that it then gave a sudden, unusual, and violent jerk, causing plaintiff to be thrown from the rear platform to the street, and sustain the injuries complained of, etc.:t is further alleged that plaintiff's injuries aforesaid were directly and proximately caused by the negligence and carelessness of defendant, his agents and servants in charge of said car, as follows:

"That defendant, his agents and servants, were negligent and careless in permitting and causing the rear doors of said street car to be opened and remain open while said street car was still in motion, and before it had reached the regular stopping place, when they saw, or by the exercise of ordinary care could have seen, that plaintiff was on the back platform near the said rear doors and was likely to be thrown out of the street car and injured by the jolt and shock of the street car if either stopped suddenly, or if the speed should be suddenly accelerated.

"Defendant, his agents and servants, were further negligent and careless in causing the car to jerk suddenly and violently, and in failing to properly and carefully bring said street car to a gradual stop, when they knew, or by the exercise of ordinary care might have known, that the sudden unusual jolt, jerk, or shock of a sudden movement of said' street car would cause plaintiff to be thrown therefrom and to be injured."

The petition then alleges that by reason of said negligence, plaintiff was thrown from the rear platform of said car, against the pavement of said street, and that he sustained the injuries described in petition, to his damage in the sum of $10,000.

The answer of defendant admits that Rolla Wells was the receiver of said railways company, and was in charge of its property. It denies every other allegation of the amended petition, and concludes as follows:

"For further answer and defense, defendant says that whatever injuries plaintiff may have sustained, if any, were caused by his own carelessness and negligence in, attempting to alight from a moving street car. Wherefore, having fully answered, this defendant prays to be hence dismissed with his proper costs."

Plaintiff, by way of reply to said answer filed a general denial. The case was tried before a jury.

Plaintiff's Evidence.

Respondent testified, in substance, that on August 23, 1919, he was in the employ of the Newport Packing Company, in South St. Louis; that he left his place of employment about 9 o'clock on the night of above date; that he changed cars at Jefferson avenue and Cherokee, and took a north-bound Jefferson avenue car; that he was carrying two baskets, one filled with tomatoes, and the other with meats and vegetables; that each basket had a handle, and each held about one-half bushel; that each of said baskets weighed about 15 pounds; that he carried one in each hand; that he took a seat on the rear platform of a pay-as-you-enter car; that he paid his fare, placed his baskets under the seat, and sat down about the middle of the rear platform; that the conductor was on the rear of said car to take up the fare, where conductors generally stand, in a little box; that plaintiff saw the conductor opening and closing the doors of said car with a lever; that the first street south of Lynch street on Jefferson avenue was Pestalozzi; that after leaving the latter, going north, and about the middle of the block, before coming to Lynch street, plaintiff tapped the conductor on the shoulder and told him he wanted to get off on Lynch; that as plaintiff turned around to pick up Ms baskets, he faced the doors to go out; that the doors were open and the car gave an awful jerk and threw him into the street; that whim the conductor opened the rear doors the car was about 10 feet from the regular stopping place; that he (plaintiff) fell about 8 or 10 feet south of the stopping place; that plaintiff did not know when the doors were opened by the conductor, but they were open when he was thrown out; that when plaintiff tapped the conductor on the shoulder the doors were not then open; that he turned west to get Ms baskets, and the doors were on the east and to his back; that as the car approached Lynch street, its speed was slackened about 50 or 60 feet back. Plaintiff testified that it was an awfully severe jerk; that it seemed like the car slackened up, gave another severe jerk, and threw him off. The plaintiff then described to the jury the extent and nature of his injuries. He testified that there was no one between the conductor and himself when he gave the signal to stop at Lynch street; that there was plenty of light, although it was a dark night.

On crass-examination, plaintiff repeated in substance the testimony given by him in chief, and stated that the conductor was located on the east side of the car going north, by the side of the doors, on rear platform.

Mrs. Hazel Muser testified in behalf of plaintiff, that she saw him picking up the contents of his basket about 10 feet south of the regular stopping point.

Dr. Kelm testified in behalf of plaintiff that the latter was suffering from a dislocated shoulder, with a severely contused and sprained back, with numerous contusions and abrasions of the chest, back, and limbs, etc.

Counsel for defendant admitted that the car above mentioned was owned and operated by defendant, as receiver of said railways company. Thereupon the plaintiff rested his case, a demurrer to the evidence was interposed by defendant, and overruled by the court.

Defendant's Evidence.

Mrs. Clara B. Smith testified, in substance, in behalf of defendant, that she and her relative, Mrs. Becker, were standing near the southeast junction of Lynch street and Zefferson avenue, for the purpose of taking passage on the car in which plaintiff had been riding; that she saw a man jump off the car; that after he was off, he fell, and one of Ms baskets upset; that he commenced picking up his stuff, and told the conductor he was not hurt; that witness and her relative got on the same car and went north. This witness further testified, as follows:

"Mr. Blodgett (Q.): When this car came to a stop where did it stop, Mrs. Smith? A. When it first stopped, just about, I think, 8 or 10 feet from where the right stopping place was."

On cross-examination, witness testified that plaintiff stepped on the steps of the rear end of the car, and jumped off with the baskets while the car was still moving; that the door of the car was still open; that plaintiff landed on both feet when he struck the ground; that after he struck the ground he fell, and the tomatoes fell from his hand; that plaintiff left the car about 8 or 10 feet from the regular stopping place; that she saw plaintiff step from the platform to the first step; that she could not state whether it was a voluntary or involuntary jump of plaintiff in leaving the car.

Mrs. Rebecca Baker testified, In behalf of defendant, that she was with Mrs. Smith, at the time of the accident; that she saw plaintiff step off of the car while it was going, and he fell when he touched the ground; that plaintiff jumped off the rear end of the car when it was about 10 feet from the pole, and while it was still moving.

J. W. Witz, defendant's conductor in charge of said car, testified as a witness for defendant, substantially, as follows: That on August 23, 1919, he saw plaintiff, a passenger, on the rear platform of said car; that as they approached Lynch street, he received a signal from plaintiff to stop the car; that he (conductor) transmitted the signal to the motorman. Witness further testified as follows:

"Q. What happened after that, Mr. Witz? A. Well, as we were approaching the crossing it seems I threw the door open just—I guess about 6 feet before the car should have stopped, and the next thing I knew Mr. Keppler fell off, and I really don't recollect seeing how he fell off." That he did not see plaintiff when the latter fell. That he did not know whether plaintiff fell off, or whether he stepped off. That it was a regular, ordinary stop.

On cross-examination, witness testified that he opened the car door about 8 feet from the corner, while the car was still moving; that it was about 10 o'clock at night; that as they approached Lynch street the car was not going more than three or four miles an hour.

Jacob Beisher, in behalf of defendant, testified, in substance, that he was...