Kirby v. United Rys. Co.

• Decision Date: 22 May 1922
• Docket Number: No. 22427.,22427.
• Citation: 242 S.W. 79
• Parties: KIRBY v. UNITED RYS. CO. OF ST. LOUIS
• Court: Missouri Supreme Court

242 S.W. 79

KIRBY v. UNITED RYS. CO. OF ST. LOUIS

No. 22427.

Supreme Court of Missouri, in Banc.

May 22, 1922.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by Mary Kirby against the United Railways Company of St. Louis. Verdict for defendant, and from order granting plaintiff's motion for new trial, defendant appeals. Order reversed, and cause remanded, with instructions to enter judgment for defendant.

Charles W. Bates, T. E. Francis, and A. E. L. Gardner, all of St. Louis, for appellant. Charles H. Richeson, of Potasi, and Jones, Rocker, Sullivan & Angert and Ernest A. Green, all of St. Louis, for respondent.

RAGLAND, C.

Plaintiff was injured when she got off of one of defendant's electric street cars, upon which she was a passenger, while it was in motion, and sues to recover damages therefor.

On August 11, 1918, about 8 o'clock in the evening, she boarded a west-bound car on Lockwood avenue, in Webster Groves, intending to get off at Gore avenue, a distance of about eight blocks. Both the front and rear platforms were inclosed; these inclosures were called vestibules; there was a door in each vestibule through which, when open, passengers could enter and leave the car. It was the custom of defendant to open the doors when it stopped the car to receive or discharge. passengers, but to keep them closed when the car was in motion. The door in the rear vestibule was opened and closed by a lever operated by the conductor, whose station was in the end of the car immediately adjacent to that vestibule. Near the center of the car the following sign was displayed: "Please leave by the front door."

After plaintiff entered the car she took a seat about midway between the front and rear. When the car was approaching Gore avenue she gave the usual signal to stop by pushing the electric button on the side of the car. After the car stopped she got up and walked to the front door, but found it closed. She then turned and walked towards the rear platform for the purpose of getting off. In the meantime other passengers were getting off, and still others were getting on, through the door of the rear vestibule, which was open.

With respect to what she did after retracing her steps and going to the rear platform, the plaintiff testified:

"Q. Now tell the jury just what happened after that—what you did after you got up to the front door and the door was closed. A. I remember I started to get off; I got started, and I was starting out the door, and I don't remember getting off.

"Q. Is that the last thing you remember? A. Yes, sir; I remember I started to get off. * * *

"Q. What is your best recollection as to whether the car was moving or standing still when you got on the back platform? A. I am most certain it was standing still. * * *

"Q. I will get you to state whether or not the vestibule doors were open at that time. A. Yes, sir; they were open and I started out. * * *

"Q. Did you notice the doors? A. Yes, sir. "Q. Were they open or closed? A. They were open.

"Q. What did you do with reference to the doors? A. Well, I started to go out, and I remember I was starting out to step out of the door, and I had my hand on the fastening of the door.

"Q. Were they open all the time? A. I don't know.

"Q. While you were there, I mean? A. When I started off?

"Q. Yes. A. Yes, sir; they were open when I started to get out.

"Q. Do you know whether the car was moving at that time? A. It was stopped.

"Q. It was standing still, as you understood it? A. Yes, sir." * * *

"The Court: Q. Was the car standing still or moving when you got out?

"Mr. Gardner: If you know?

"A. It was standing still.

"Q. Did you attempt to get off right away— immediately? A. Yes, sir.

"Q. Now what happened then? A. I don't know.

"Q. What was the next thing you knew. A. The next thing that I remember?

"Q. Yes. A. I remember I was in the Barnes Hospital. * * *

"Q. Now, as you went back to get off the car onto the back platform, did you pass in front of the conductor? A. Yes, sir.

"Q. Did he say anything to you about whether the car was in motion or not? A. No, sir; he never.

"Q. Did he say anything to you? A. No, sir; he never said anything.

"Q. Did you observe any other people on that back platform? A. Yes, sir.

"Q. How many were there on there. A. One or two.

"Q. What was the conductor doing as you passed by him? A. I don't know; he was standing there making change, or maybe

"Q. What did you see him doing, if anything? A. He was standing there looking like he was making change; I don't know what he was doing.

"Q. And there was nothing said between you and him—either of you? A. No, sir.

"Q. As you came back from the front platform to the rear platform, did you observe anything in the way of the car starting at any time? A. No, sir. * * *

"Q. Did the conductor undertake to close them (the doors) while you were on the back platform? A. No, sir. * *

"Q. But, of course, you don't know how you got off that car do you? A. No. sir.

"Q. You do not? A. No, sir; I know that started off.

"Q. You don't know how you got off? A. No, sir; I don't know how I got off."

E. C. McCurdy was the only witness called who saw the plaintiff leave the car. He was the last of three or four passengers, including his wife and child, to get on the car at Gore avenue. As soon as he got on, the car immediately started. After he had been standing on the rear platform "some little time, a minute or two," and while facing the fare box and the conductor, who was at the time engaged in making change for him, he noticed plaintiff step down from the aisle of the car onto the platform, and pass on his left side around behind him. He paid no particular attention to her movements until an instant later, when some one in the vestibule behind him shouted, "Wait a minute." He immediately turned to the right facing the exit of the car, and saw plaintiff step down onto the step and off to the street. He said: "She stepped off in a very deliberate manner; walked off." The witness further testified that when plaintiff stepped down onto the platform and passed around behind him the conductor was standing so he could have seen her, had he been looking in her direction, but that the conductor "was looking right down on his changer; he was looking at something; he was giving me a child's ticket or something."

When plaintiff walked off the car it was running at a rate of 18 miles an hour, and she was picked up unconscious and bleeding 160 feet west of the place where the car had stopped at Gore avenue. Among other injuries she sustained a fracture of the skull, resulting in an impairment of her memory, from which she had but partially recovered at the time of the trial. She was 18 years of age; she had lived in Webster Groves three and one half years prior to the accident; during that time she had frequently ridden on defendant's street cars, and had become familiar with its methods and customs in connection with the receiving and discharging of passengers.

The petition counts on negligence. The specifications are contained in six paragraphs, involving repetitions, but in different settings, so framed, no doubt, to meet any possible state of the proof. Substantially they charge that defendant was negligent in the following respects: (1) In starting the car with a sudden and violent jerk, and at a rapid rate of speed, without warning plaintiff, and without affording her a reasonable opportunity to alight therefrom, after it had been stopped upon her signal, and the vestibule doors opened, and after she had gone to the rear platform to alight; (2) in operating the car at a rapid rate of speed with the vestibule door on the rear platform open while, as it knew, plaintiff was on that platform for the purpose of getting off; (3) in starting the car at a rapid rate of speed with the vestibule door open, without giving plaintiff an opportunity to get off, after it had stopped at one of its regular stopping places, add after she had passed out of the car onto the platform for the purpose of alighting; (4) in not giving plaintiff a reasonable time to get off the car from the rear platform after she had gone to the front door on its invitation, and found that door closed; and (5) in not warning plaintiff that the car was in motion, and in not preventing her from alighting therefrom after defendant's employee saw, or by the exercise of reasonable care could have seen, that she was in the act of getting off the car.

At the close of plaintiff's case in chief, the defendant asked an instruction in the nature of a demurrer to the evidence. The instruction was given, and a verdict was returned in accordance with it. Plaintiff's motion for a new trial was sustained on the ground that the giving of the instruction was error. Defendant's appeal is from the order granting a new trial.

I. There is no evidence that defendant started the car with a sudden and violent jerk. However, having invited plaintiff to go to the front end, and get off, it may have been negligent in not waiting until after she had retraced her steps and reached the rear platform, and then affording her a further reasonable time...