Laible v. Wells

• Decision Date: 24 May 1927
• Docket Number: 25857
• Parties: Elizabeth Margaret Laible, Appellant, v. Rolla Wells, Receiver of United Railways Company of St. Louis
• Court: Missouri Supreme Court

296 S.W. 428

317 Mo. 141

Elizabeth Margaret Laible, Appellant, v. Rolla Wells, Receiver of United Railways Company of St. Louis

No. 25857

Supreme Court of Missouri

May 24, 1927

Motion for Rehearing Overruled June 25, 1927.

Appeal from Circuit Court of City of St. Louis; Hon. Wilson A Taylor, Judge.

Reversed and remanded.

E. J Hullverson, Mark D. Eagleton and John S. Marsalek for appellant.

The court erred in telling the jury, by defendant's Instruction 3, that the defendant was not liable if the movement of the car was only such as was necessarily incident to its operation or starting, even though it did amount to a jar, jerk or jolt. Dougherty v. Railroad, 81 Mo 325; Miller v. Met. St. Ry. Co., 125 Mo.App. 416; Brady v. Traction Co., 140 Mo.App. 421; Gabriel v. Met. St. Ry. Co., 164 Mo.App. 56; Rhodes v. Mo. Pac. Ry. Co., 213 Mo.App. 515.

T. E. Francis and W. H. Woodard for respondent.

(1) A street car may be started after the passenger is safely aboard without waiting until the passenger is seated, absent notice in law to the carrier of infirmities of the passenger. Yarnell v. Railroad Co., 113 Mo. 576; Barth v. Elevated Ry. Co., 142 Mo. 535, 550; Bobbitt v. United Rys. Co., 169 Mo.App. 429; Laycock v. United Rys. Co., 290 Mo. 344, 235 S.W. 91 (affirming 227 S.W. 885); Howard v. Louisville Ry. Co., 32 Ky. 309, 105 S.W. 932; Saunders v. Elevated Ry. Co., 216 Mass. 355, 103 N.E. 779; Martin v. Elevated Ry. Co., 216 Mass. 361, 103 N.E. 828; Flanagan v. Elevated Ry. Co., 216 Mass. 337, 103 N.E. 905; Sharp v. Ry. Co., 111 La. 395, 35 So. 614. (2) The passenger assumes the risk of injury caused by movements of the car necessarily incident to its operation. Provance v. Mo. Southern Ry., 186 S.W. 955; Farmer v. Ry. Co., 178 Mo.App. 579, 161 S.W. 327; Laycock v. United Rys. Co., 290 Mo. 344, 235 S.W. 91; Hite v. Street Ry. Co., 130 Mo. 132; Hedrick v. Railroad Co., 195 Mo. 104, 93 S.W. 268. (3) Instruction 3 correctly told the jury that the defendant was not liable for a movement necessarily incident to the operation of the car and could only be held for some unusual or violent movement, plaintiff being an able-bodied person in a position of safety in the car and the car being then moving. Laycock v. United Rys. Co., 290 Mo. 344, 235 S.W. 91; Bennett v. Street Railway Co., 180 S.W. 1051.

Graves, P. J. All concur; Ragland, J., concurs in all except comments on Federal Practice, as to which he expresses no opinion.

OPINION

GRAVES

Action for personal injuries alleged to have been received through the negligent operation of a street car by defendant, as Receiver of the United Railways Company of St Louis. Plaintiff, an elderly lady, and her daughter boarded a southbound Grand Avenue car at the intersection of Grand Avenue and Chouteau Avenue, public streets of the city of St. Louis. This was on or about the 9th day of April, 1922, and this intersection was a regular stopping place for the reception and discharge of passengers. The negligence alleged in the petition is thus stated:

"And that plaintiff there boarded said car and became a passenger thereon, and said car, while in motion and before plaintiff became seated, suddenly and violently in a very unusual, extraordinary and unexpected manner, jerked, jarred, jolted and moved as a direct and proximate result of negligence and carelessness of defendant, his agents and servants, directly causing plaintiff to be suddenly, forcibly and violently thrown about on and in said car."

After admitting that defendant was receiver, the answer is a general denial. Upon a trial of the issues before a jury the defendant had a verdict, upon which judgment was entered, and plaintiff has appealed from such judgment. The amount sued for fixes the jurisdiction in this court.

The sole question raised by the appeal is the propriety of the court's action in giving instruction numbered 3 for defendant. This instruction reads:

"Liable v. Wells, Receiver.

"The issue in this case is a simple one. The only question is whether or not the defendant negligently caused the street car to give a violent or unusual jar, jerk or jolt.

"In this connection I charge you that an unusual or violent jolt or jerk is not that character of movement which is ordinarily necessary in the operation of a street car. In other words, the defendant is not liable if the movement of the car was only such movement as was necessarily incident to its operation or its starting.

"Therefore, if you find and believe from the evidence that the movement of the car at the time in question was only such movement as is necessarily incident to the operation of the car, even though it did amount to a jar, jolt or jerk, nevertheless, the defendant would not be liable therefor, and your verdict must be against the plaintiff and in favor of the defendant, Rolla Wells."

In the brief of respondent, it is admitted that the evidence in behalf of the plaintiff made for her a case for the jury. Note the language used:

"Having thus made a case for the jury under her petition, in spite of the fact that the plaintiff herself said she was thrown by the sudden start of the car, it is interesting to note that the plaintiff, who was facing to the rear of the car, claimed that she was thrown backward toward the front of the car, lighting on her back. It would be the opposite direction from that in which she would fall if the fall were occasioned by either the sudden starting of the car or a sudden violent acceleration of speed, considering her position walking toward or facing the rear of the car."

It will not be necessary to discuss the alleged conflict in the testimony, so long as it is admitted that there was evidence making a case for the jury, and our attention will be directed to the instruction, supra.

I. We said that we would not discuss the alleged conflict in the evidence, but we should say that the plaintiff was 72 years of age, and her conception of just how the accident occurred might not be as clear as that of one of less years. It is not always an easy matter to tell just how one falls. It suffices to say that, without the admission of counsel, supra, the evidence makes a case for the jury. The lurch, jerk or movement of the car was both sudden and violent, and out of the ordinary. But this to the side, and the real issue next.

II. It is clear that the party who drew Instruction 3 had been drawing inspiration from the Federal courts. Suffice it to say that but few states tolerate undue comments upon the evidence in the case, and fewer of them tolerate the usurpation of the jury's province by the court, and most certainly Missouri is not one of the number which tolerates either practice. Speaking, not as a prophet, but only as one who can hear the mutterings of an on-coming storm, and visualize the outcome thereof, it is safe to say the present Federal practices in these regards will be wiped out by statutes, if not corrected by the courts. If we are to have jury trials at all, both court and jury should be kept strictly within their respective fields of action in the course of the trial.

At the expense of brevity, but for a close and critical analysis of this instruction, we copy it again, so that we may have it in plain view, as we undertake to point out its defects. In full the instruction reads:

"Laible v. Wells, Receiver.

"The issue in this case is a simple one. The only question is whether or not the defendant negligently caused the street car to give a violent or unusual jar, jerk or jolt.

"In this connection I charge you that an unusual or violent jolt or jerk is not that character of movement which is ordinarily necessary in the operation of a street car. In other words, the defendant is not liable if the movement of the car was only such movement as was necessarily incident to its operation or its starting.

"Therefore, if you find and believe from the evidence that the movement of the car at the time in question was only such movement as is necessarily incident to the operation of the car, even though it did amount to a jar, jolt or jerk, nevertheless, the defendant would not be liable therefor, and your verdict must be against the plaintiff and in favor of the defendant, Rolla Wells."

The first paragraph of this instruction is proper. It is negligence to cause a street car to give a violent or unusual jar, jerk or jolt. This because such action places the passengers in peril. But note when we come to the third paragraph of the instruction the words "violent or unusual" as qualifying words are omitted entirely. This third paragraph does not present the question at issue. This issue, as we have said, is well defined in the first paragraph. What everybody knows, the courts know. The court therefore knows that "violent or unusual" jerks jars, or jolts do not usually accompany the starting of a street car. Nor are such "violent or unusual" jerks, jars or jolts necessarily incident to the operation of such cars. So, when we boil down this third paragraph of the instruction it amounts to saying to the jury that you must find against the plaintiff if there was a "jar, jolt, or jerk" even though such was only the ordinary or usual movement of the car. The two paragraphs (1st and 3rd) are absolutely inconsistent. Nor are we prepared to say that there is no liability if there is a violent and unusual...