Lacks v. Wells., 29252.

• Citation: 44 S.W.2d 154
• Decision Date: 02 December 1931
• Docket Number: No. 29252.,29252.
• Parties: CELIA LACKS, Appellant, v. ROLLA WELLS, Receiver of UNITED RAILWAYS COMPANY of St. Louis, and ST. LOUIS PUBLIC SERVICE COMPANY.
• Court: United States State Supreme Court of Missouri

44 S.W.2d 154

CELIA LACKS, Appellant, v. ROLLA WELLS, Receiver of UNITED RAILWAYS COMPANY of St. Louis, and ST. LOUIS PUBLIC SERVICE COMPANY.

No. 29252.

Supreme Court of Missouri.

Division One, December 2, 1931.

Appeal from Circuit Court of City of St. Louis. — Hon. Granville Hogan, Judge.

AFFIRMED.

Fred Berthold for appellant.

(1) Demurrer to plaintiff's evidence accepts it as true, if not beyond reason, and allows plaintiff's case benefit of every reasonable inference. Compton v. Construction Co., 287 S.W. 474, 315 Mo. 1068; Kennedy v. Quarry & Const. Co., 291 S.W. 475, 316 Mo. 782; Schlueter v. Railroad Co., 296 S.W. 105, 316 Mo. 1266. (2) The negligence of the driver of an automobile in striking a passenger alighting from a street car does not relieve the street car company from liability for the injuries, if it was also negligent. Wood v. Public Service Corporation, 174 N.C. 697, 94 S.E. 459; Watts v. Fleming (Mo. Sup.), 298 S.W. 107; Daneschocky v. Seiben, 195 Mo. App. 470, 193 S.W. 966; Gilman v. Fleming, 265 S.W. 104; Fillingham v. Transit Co., 102 Mo. App. 573; Neville v. Railroad, 158 Mo. 293; Kelly v. Railroad, 70 Mo. 604; Straus v. Railroad, 75 Mo. 185; Hurt v. Railroad, 94 Mo. 255; McKimble v. Railroad, 139 Mass. 542; Penn. Railroad Co. v. McCaffrey, 173 Ill. 169. (3) Part of the duty of a common carrier to safeguard passengers while leaving a car consists in taking care to put them off at a reasonably safe place. Talbott v. Railroad, 72 Mo. App. 291; Atchison v. Railroad, 92 Mo. App. 489; Young v. Railroad, 93 Mo. App. 267; Stewart v. Railroad, 80 N.W. (Minn.) 854. (4) Though the carrier does not warrant the safety of passengers, he is bound to provide for it so far as skill and assiduity can do so, and is responsible if an accident occurs because of the slightest negligence on his part. Hutchison on Carriers (2 Ed.), secs. 500, 501-553; Thompson on Carriers of Passengers, p. 200; Sawyer v. Railroad, 37 Mo. 240; Lemon v. Chanslor, 102 Mo. 438; Sharpe v. Railroad, 114 Mo. 101; Schaefer v. Railroad, 128 Mo. 640. (5) Concurrent negligence gives cause of action against each participant and judgment may be obtained against all, and if defendant's negligence commingles and operates as a counter element in producing the injury, he is liable, even though injury was due to another. Kidd v. Railroad (Mo. Sup.), 274 S.W. 1086; Gilman v. Fleming, 265 S.W. 104; Meyers v. Kennedy, 267 S.W. (Mo. Sup.) 811; State ex rel. v. Cox, 274 S.W. (Mo. Sup.) 376.

T.E. Francis, B.G. Carpenter and Hensley, Allen & Marsalek for respondents.

(1) Since the petition charges specific acts alleged to constitute negligent breaches of duty on the part of defendants causing plaintiff's injury, plaintiff is confined to such assignments of negligence and cannot recover upon the theory that the defendant Receiver was negligent in any other respect or guilty of any other breach of duty owing to the plaintiff. Roscoe v. Met. St. Ry. Co., 202 Mo. 576; Beave v. Railroad, 212 Mo. 331; Gardner v. Met. St. Ry. Co., 223 Mo. 389; Walser v. Railroad Co., 6 S.W. (2d) 633; Kirkpatrick v. Railroad, 211 Mo. 68; Orcutt v. Building Co., 201 Mo. 424; Hite v. Met. St. Ry. Co., 130 Mo. 132. (2) If the petition can be held to state any cause of action, there was a total failure to prove any act charged against the defendants which could constitute the breach of any duty owing by either of them to plaintiff. Ruddy v. Ingebret, 164 Minn. 40, 44 A.L.R. 159; Jacobson v. St. Ry. Co., 109 Nebr. 356, 31 A.L.R. 563; Chesley v. Railroad Co., 188 Iowa, 1004, 12 A.L.R. 1366; Creamer v. West End St. Ry. Co., 156 Mass. 320; Chattanooga Elec. Co. v. Boddy, 105 Tenn. 666, 51 L.R.A. 885; Fitzgerald v. Railroad Co., 201 Iowa, 1302, 207 N.W. 602; Reining v. Northern O.T. & L. Co., 107 Ohio St. 528, 140 N.E. 84; Keator v. Traction Co., 191 Pa. 102, 44 L.R.A. 546; Thompson v. Greenville Tr. Co., 116 S.C. 444; Powers v. Connecticut Co., 82 Conn. 665, 26 L.R.A. (N.S.) 405; Farrington v. Railroad Co., 202 Mass. 315; Smith v. Ry. Co., 29 Ore. 539; Indianapolis St. Railroad Co. v. Tenner, 32 Ind. App. 311; Hammett v. Birmingham R.L. & P. Co., 202 Ala. 520; Jernigan v. Ga. Ry. & P. Co., 31 Ga. App. 120; Mahoning & S. Ry. & L. Co. v. Leedy, 104 Ohio St. 487, 136 N.E. 198. (3) The evidence adduced by plaintiff did not show the breach of any duty owing by defendants or either of them to plaintiff. Ruddy v. Ingebret, 164 Minn. 40, 44 A.L.R. 159; Jacobson v. Ry. Co., 109 Neb. 356, 31 A.L.R. 563; Chesley v. Railroad Co., 188 Iowa, 1004, 12 A.L.R. 1366; Morris v. Ry. Co., 193 Iowa, 616, 187 N.W. 510; Creamer v. West End St. Ry. Co., 156 Mass. 320; Chattanooga Elec. Co. v. Boddy, 105 Tenn. 666, 51 L.R.A. 885; Fitzgerald v. Railroad Co., 201 Iowa, 1302, 207 N.W. 602; Reining v. Northern O.T. & L. Co., 107 Ohio St. 528, 140 N.E. 84; Keator v. Traction Co., 191 Pa. 102, 105, 44 L.R.A. 546, 191 Pa. 112; Thompson v. Greenville Tr. Co., 116 S.C. 444; Powers v. Connecticut Co., 82 Conn. 665, 26 L.R.A. (N.S.) 405; Farrington v. Railroad Co., 202 Mass. 315; Smith v. City Ry. Co., 29 Ore. 539; Indianapolis St. R. Co. v. Tenner, 32 Ind. App. 311; Hammett v. Birmingham R.L. & P. Co., 202 Ala. 520; Jernigan v. Ga. Ry. & P. Co., 31 Ga. App. 120; Mahoning & S. Ry. & L. Co. v. Leedy, 104 Ohio St. 487, 136 N.E. 198. (4) Since plaintiff, when struck by the automobile, had stepped upon the street and had fully disembarked from the car, and was standing on the street facing north, with her basket in her hand, the relation of passenger and carrier had terminated. Creamer v. West End St. Ry. Co., 156 Mass. 320; Chesley v. Railroad Co., 188 Iowa, 1004, 12 A.L.R. 1366; Bigelow v. West End St. Ry. Co., 161 Mass. 393; Ruddy v. Ingebret, 164 Minn. 40, 44 A.L.R. 159; Morris v. Railway Co., 193 Iowa, 619; Reining v. Traction & L. Co., 107 Ohio St. 528; Powers v. Connecticut Co., 82 Conn. 665, 26 L.R.A. (N.S.) 405; Farrington v. Railroad Co., 202 Mass. 315; Conway v. L. & A.H. Railroad Co., 87 Me. 283, 32 Atl. 901; Central R. Co. v. Peacock, 69 Md. 257; Buzby v. Philadelphia Traction Co., 126 Pa. St. 559; Smith v. C. & S. Railroad Co., 29 Ore. 539, 46 Pac. 136; Chattanooga Electric Co. v. Boddy, 105 Tenn. 666, 51 L.R.A. 885; Indianapolis St. Railroad Co. v. Tenner, 32 Ind. App. 311; Keator v. Traction Co., 191 Pa. 102, 44 L.R.A. 546; Quinn v. Ins. Co., 224 Mich. 641; 4 R.C.L. 1047.

ATWOOD, J.

This case comes to the writer upon reassignment. It is an appeal by plaintiff in a personal injury suit for $10,000 from a judgment for defendants on a directed verdict.

The case was tried upon plaintiff's second amended petition, which, after formal allegations as to the corporate existence of defendants and their relations each to the other, alleged that "on or about the 15th day of March, 1927, at about eleven o'clock in the morning, plaintiff was passenger on a southbound Jefferson Avenue street car of the defendant Rolla Wells, Receiver of the United Railways Company of St. Louis, and when said street car arrived at a point between Geyer Avenue and Allen Avenue on Jefferson Avenue, or about in front of 1915 South Jefferson Avenue, the defendant, his agents and servants carelessly and negligently opened the doors of said car and invited plaintiff to alight at said point, which was not the usual and customary stopping place for southbound Jefferson Avenue street cars, and plaintiff while alighting from said street car at said point, was struck and knocked back into the street car by an automobile which was being driven southwardly on Jefferson Avenue in an attempt to pass said standing street car, and as a direct result thereof plaintiff sustained the serious and permanent injuries," etc. The petition further alleged "that the defendant, his agents and servants in charge of and operating said southbound Jefferson Avenue street car in stopping said street car in front of about 1915 South Jefferson Avenue were guilty of the following acts of carelessness and negligence, to-wit:

"First. Said defendants, its agents and servants carelessly and negligently stopped said street car at a place that was not the customary and usual stopping place for said street cars and invited plaintiff to alight from said street car at said point, when said defendants; its agents and servants knew, or by the exercise of the highest degree of care could have known, that to allow plaintiff to alight from said street car between the blocks of Geyer Avenue and Allen Avenue plaintiff was likely to be struck and injured by passing vehicles.

"Second. It was the duty of the defendants, its agents and servants in charge of said car to stop said car either at Geyer Avenue or Allen Avenue for the purpose of allowing plaintiff to alight therefrom, but carelessly and negligently stopped said street car between said car stops and at a point which was not the usual and customary stopping place and at a point where the defendant maintained no safety zone or platforms, when the defendants, its agents and servants knew, or by the exercise of the highest degree of care could have known, that it was dangerous and unsafe to allow plaintiff to alight between said blocks; and the defendants, its agents and servants knew, or by the exercise of the highest degree of care could have known, that plaintiff was likely to be struck by passing vehicles.

"Third. Said defendants, its agents and servants carelessly and negligently failed to exercise the highest degree of care toward plaintiff to provide plaintiff a reasonably safe place from which to alight from said car, in that said street car was not stopped at the usual and customary stopping place.

"Fourth. On and prior to said 15th day of March, 1927, the defendants, its agents and servants maintained a custom that, when the exit doors of the car were opened by the conductor in charge of the car, it was an invitation to the passengers to alight, and that on said 15th day of March, 1927, the defendants, its...