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

• Decision Date: 21 December 1916
• Docket Number: No. 16980.,16980.
• Citation: 191 S.W. 992
• Parties: LAURENT v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

191 S.W. 992

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

No. 16980.

Supreme Court of Missouri. In Banc.

December 21, 1916.

Motion for Rehearing Denied February 13, 1917.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Elizabeth Laurent, by her guardian, Albert Laurent, against the United Railways Company of St. Louis, Mo. Judgment for defendant, and plaintiff appeals. Reversed, and remanded for another trial.

A. R. & Howard Taylor, of St. Louis, for appellant. Boyle & Priest and T. M. Pierce, all of St. Louis, for respondent.

WOODSON, J.

This suit was instituted in the circuit court of the city of St. Louis by the plaintiff against the defendant to recover the sum of $20,000 damages for personal injuries alleged to have been sustained by her in consequence of its negligence. The verdict and judgment were for the defendant, and the plaintiff appealed the cause to this court.

In so far as this appeal is concerned, the facts were as follows:

The defendant constructed and maintained a station on the north side of Eastern avenue, where defendant's tracks come into said avenue from the north and curve east thereon. The defendant also constructed and maintained a granitoid sidewalk on the south side of said station, which extended within two or three feet of defendant's track.

On the date of the injury complained of the plaintiff and eight or ten other persons were at said station for the purpose of taking passage on the next car coming from the north; and while standing on said walk the end of the car in making the curve protruded over the sidewalk some two or three feet to the point where the plaintiff was standing, and struck and knocked her down, and inflicted the injuries complained of.

At the instance of the defendant the court gave the jury the following instruction:

"The court instructs the jury, if you find and believe that plaintiff took a position so near a street railway track as to be in danger of being struck by a car thereon while said car was rounding a curve, and that plaintiff saw or by the exercise of reasonable care would have seen that there was danger of being struck by the body of the car as it projected over a rail whilst rounding a curve, then plaintiff cannot recover, and your verdict must be for defendant."

This instruction is clearly erroneous, not only "not couched in as plain language as that which it might have been" in the language of the Commissioner, but it is actually misleading when applied to the facts of this case.

The evidence for the plaintiff showed that the end of the car in making the curve at the point of the injury projected for a distance of five or more feet over the rail nearest to said sidewalk upon which plaintiff was standing; also that plaintiff had no previous knowledge or notice of that fact.

That was an unusual condition, so much so no court should declare as a...