Kreimelmann v. Jourdan

• Decision Date: 01 March 1904
• Citation: 80 S.W. 323,107 Mo. App. 64
• Court: Missouri Court of Appeals
• Parties: KREIMELMANN v. JOURDAN.<SMALL><SUP>*</SUP></SMALL>

80 S.W. 323

107 Mo. App. 64

KREIMELMANN v. JOURDAN.^*

St. Louis Court of Appeals. Missouri.

March 1, 1904.

CARRIERS — INJURIES TO PASSENGERS — STREET CARS—FOOTBOARDS—USE—NEGLIGENCE—CONTRIBUTORY NEGLIGENCE — QUESTIONS FOR JURY—DUTY TO LOOK.

1. Where a street railway company ran open summer cars, with a continuous footboard on each side, on double tracks so close together that passengers using the inside footboard would be struck by cars going in the opposite direction, and plaintiff was so struck and injured while he was passing from the rear of the car, along such footboard, to a seat, without knowledge that the tracks were so close together as to render his position dangerous, he was not guilty of contributory negligence as a matter of law, though he was well acquainted with the operation of street cars; defendant having taken no precautions to prevent such use of the inside footboard by passengers.

2. The negligence of the street railway company in leaving such inside footboard open to the use of passengers under such circumstances was for the jury.

3. Where a passenger on a street car was injured while passing along the inside footboard to a seat by being struck by a car approaching on a parallel track from the opposite direction, and he had no knowledge that the tracks were so close as to render his act dangerous, his failure to look around before going onto such footboard did not constitute contributory negligence.

4. In an action for injuries to a passenger, while passing along the inside footboard of a street car to a seat, by being struck by a car going in the opposite direction, a requested instruction that the footboard was only intended to be used in boarding and alighting from the car was properly refused.

5. Where a passenger on a street car was injured while passing along the inside footboard to a seat, a requested instruction that, if plaintiff could have obtained a seat on the outside of the car, but nevertheless went on the board on the inside, and thereby contributed to the accident, he assumed the risk, and could not recover, was properly refused.

6. Negligence cannot legally be inferred from the act of a passenger in riding on a platform or footboard of a street car when a seat can be obtained, or from his temporary use of such footboard to reseat himself.

Appeal from Circuit Court, St. Louis County; J. McElhinney, Judge.

Action by Frederick Kreimelmann against Morton Jourdan, as receiver of the People's Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehmann, for appellant. A. R. Taylor, for respondent.

GOODE, J.

Plaintiff received very serious injuries, including the loss of a foot, by being struck by one of the trolley cars of the People's Railway Company, then operated by the predecessor of the present receiver. Plaintiff had taken passage at the southeast corner of Ohio street and Lafayette avenue on an open summer car with a continuous step or footboard along each side. He got on the car on the south side, intending to go eastward on Lafayette, as the railway track runs east and west on that avenue from the corner mentioned. Plaintiff was accompanied by his brother, and, as they saw no vacant seat on the south side of the car, where they entered, they passed around the rear bench to the north side to reach an unoccupied seat. The brother, Charles Kreimelmann, who was in advance, stepped on the north footboard, and then to a seat, without harm; but the plaintiff had barely reached the board when he was hit by a car westbound on the north track. The two tracks were near each other at that place; so near that the upright stanchions or grab rails, which projected from the sides of the two cars, were only 10. or 12 inches apart as the cars passed, thus making it very hazardous for a passenger to be on an inside footboard. The plaintiff admitted he knew the tracks were close together, but swore he did not know there was danger of a car on the north track colliding with him as he endeavored to get to a seat by stepping on the north footboard of the car he was on. The defendant's position is that the plaintiff should have been denied relief by the trial court, because his own testimony permits no belief or inference except that he voluntarily and knowingly went into a place of danger. This position is founded on plaintiff's statement that he lived in the neighborhood, and frequently used the railway line on which he was hurt. As to the plaintiff's testimony conceding or conclusively establishing that he knew there was danger of being struck by a passing car if he got on the footboard, we answer that it does neither; for, as said above, he positively denied knowing there was any danger, and declared he did not think there was any. How, then, can it be said he should have been nonsuited on his own testimony? Manifestly, he should not have been on the score that he voluntarily and recklessly assumed an obvious risk; for while his statement that he was ignorant of the risk did not conclude the matter, it made an issue of fact for the jury to determine from all the evidence. That he was familiar with the tracks was to be taken into account in determining whether his declared ignorance of the danger incurred in getting on the footboard was true. But a man might use street cars running on parallel tracks a long time, and might know the tracks were about the distance apart those in question were, without realizing that it was dangerous to use the running board of an open car if that side was left open for use, unless his attention was drawn to the danger by some incident. Men are not apt to make nice calculations about such things, but are rather inclined to trust to the carrier's system and management. The questions of the defendant's negligence and of the plaintiff's contributory negligence were for the jury, and not for the court, if it is not the law that a passenger who steps on a footboard, as the plaintiff did, and for the like purpose, is absolutely barred from recovering for an injury received while there. The operation of cars of the pattern which caused this accident, with no restraint or guard against the use of the footboards on both sides, and on tracks so close that passengers are in peril of a collision when using the inside footboard, cannot be regarded as other than inconsiderate management. If it desired to operate such cars on such tracks, the company should have taken some precaution to prevent passengers from using the inside footboard; and leaving that side as accessible as the other was an invitation to step on the footboard when it was necessary to do so in boarding or alighting from a car or to find a seat. Situations in which it would be a negligent act for a passenger to get on the step or footboard of a moving car can be called to mind, but the facts disclosed in the present case are far from rendering it certain that the plaintiff was negligent. According to his testimony— and there is very little, if any, evidence to refute it—he was in no sense negligent when he stepped where he was hurt, for he stepped there in an endeavor to reach a seat, and was moving cautiously. That such an act is not always a negligent one has been frequently held, and, by the principle of the decision in Huelsenkamp v. Railway Co., 34 Mo. 45, 37 Mo. 537, 90 Am. Dec. 399, may be said to have been held in this state. In that case the plaintiff's husband got on a car at the Fair Grounds, in the city of St. Louis, to ride home. The car was crowded, and he was compelled to stand on a step and hold by the guard rails, with his body leaning outside the line of the car. In consequence of his position, he was struck by another car standing on a turnout, and killed. While the judgment was reversed on the first appeal for an erroneous instruction, there was no suggestion that the case ought to have been withdrawn from the jury, and in truth it was remanded for retrial. That an accident of the kind that befell Kriemelmann presents a case for the jury on the question of contributory negligence of the party injured was decided in City R. Co. v. Lee, 50 N. J. Law, 435, 14 Atl. 883, 7 Am. St. Rep. 798; Chicago Ry. Co. v. Rood, 62 Ill. App. 550; Citizens' Ry. v. Hoffbauer, 23 Ind. App. 614, 56 N. E. 54; Cogswell v. Ry. Co., 5 Wash. 46, 31 Pac. 411; Topeka Ry. v. Higgs, 38 Kan. 375, 16 Pac. 667, 5 Am. St. Rep. 754; Elliott v. Ry., 18 R. I. 707, 28 Atl. 338, 31 Atl. 694, 23 L. R. A. 208. Text writers declare the rule the same way. Nellis, Street Railways, p. 472.

The instructions given by the trial court advised the jury they must find Kriemelmann was observing ordinary care when hurt. In reference to the negligence of the railway company, the case was referred to the jury only on the issue of whether the tracks and the cars in use were so constructed that a passenger was likely to be struck by a passing car while going carefully along an inside footboard to a seat. The instruction granted at plaintiff's request was that if, while he was getting to a seat on the footboard, he was struck and injured because the defendant's tracks and cars were so constructed as to leave...