Landon v. United Rys. Co. of St. Louis

• Decision Date: 18 February 1922
• Docket Number: No. 22386.,22386.
• Parties: LANDON v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

237 S.W. 496

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

No. 22386.

Supreme Court of Missouri, Division No. 2.

February 18, 1922.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Action by William Landon, by Carrie Landon, his next friend, against the United Railways Company of St. Louis. From an order setting aside a verdict for defendant and granting a new trial, defendant appeals. Judgment affirmed, and cause remanded.

Charles W. Bates, T. E. Francis and George T. Priest, all of St. Louis, for appellant.

W. J. Blesse and William Kohn, both of St. Louis, for respondent.

HIGBEE, P. J.

Defendant is a common carrier operating street cars in the city of St. Louis. It has a double track running east and west on Easton avenue. Plaintiff, a boy aged 14, alleged in his petition that while he was riding the rear bumper of an east-bound car on said avenue the conductor in charge of the car struck plaintiff's hands and arms while said car was running 15 miles per hour, and negligently and carelessly pushed plaintiff off the bumper, so that he fell in front of and was struck by a westbound car operated by defendant, whereby his left leg was broken, his body bruised, his back wrenched, and his kidneys torn and bruised; that his injuries were permanent and to his damage in the sum of $10,000. The answer is a general denial. It further avers that plaintiff was a trespasser on defendant's car, and that if he suffered any injuries they were caused by his own carelessness and negligence in riding on the bumper of defendant's car and voluntarily alighting therefrom while the car was in motion, and going into the side of a moving west-bound street car without looking or listening therefor. On the trial the jury returned a verdict for the defendant, which the court set aside for the reason that the court gave erroneous, misleading, and conflicting instructions. From the order granting a new trial, the defendant appealed.

The evidence for the plaintiff tended to prove that plaintiff and other boys got on the rear bumper of the car while it was in motion, and that the conductor in charge thereof raised a window and repeatedly struck plaintiff's hands with his punch and then pushed him in the face, causing him to fall and come in contact with a west-bound car which happened to be passing at the moment. Plaintiff testified that after he fell he tried to get up and another car hit him; that he did not see the car until it struck him. The motorman of the west-bound car stopped it and carried plaintiff to the gutter. In about an hour he was taken to the City Hospital, where he stayed 11 weeks and 2 days. He further testified that his left leg was broken, his side bruised, and his kidneys injured so that he suffers with nephritis. Dr. Heid, the hospital physician, testified there was a simple transverse fracture of the middle third of the left femur; that there were no superficial abrasions or lacerations. "We put on three casts on this boy, after trying to set if, and finally we had to resort to a bone operation. We had to cut down and set the bones in place." Other evidence showed that plaintiff's left leg was shortened and that he was suffering from nephritis.

The evidence for the defendant tended to prove that the conductor in charge of the car did not strike or push the plaintiff off the bumper; that he did not see plaintiff, or even know he was on the bumper; that plaintiff jumped off and staggered or ran into the side of the other car.

The defendant's instruction No. 4 told the jury that, even though they believed from the evidence that plaintiff fell from the car and was injured, still he was not entitled to recover if they found from the evidence that the conductor did not strike him.

It is not alleged in the petition that plaint...