Leu v. St. Louis Transit Company
| Decision Date | 12 April 1904 |
| Parties | LEU, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. H. W. Johnson, Judge.
On October thirtieth, 1902, shortly after five o'clock p. m plaintiff, a resident of the city of St. Louis, arrived therein on one of the defendant's cars at the crossing of Olive, a street extending eastwardly and westwardly, with Vandeventer avenue, a street running northwardly and southwardly; he alighted from the Olive street car and for the purpose of proceeding homeward on a north-bound car of defendant on Vandeventer avenue, he stationed himself at northwest corner of the intersecting thoroughfares, and as a Vandeventer car approached from the south, he signalled it to stop; as the car passed him he took hold of the forward handrail of rear platform to enter, the car moved forward and he was dragged, thus clinging to the handrail, till his strength was exhausted and he fell to the ground.
The testimony on behalf of the plaintiff, consisting of his own version of the affair, the narrative of a companion whom he had joined on the Olive street car, and, like himself, who was awaiting a north-bound Vandeventer avenue car, and the statement of a stranger who witnessed the occurrence, was in irreconcilable conflict with the testimony introduced on defendant's behalf, made up of the descriptive statements of motorman and conductor of the car, and of a policeman present at the time. Plaintiff's portrayal of the mishap tended to establish that the speed of the car was much reduced as it drew near Olive street until, as some testifying stated, it stopped south of the Olive street tracks, as the testimony showed a rule of the company required, and then continued on slowly crossing the intersecting Olive street tracks as if about to come to a stop at the street crossing on the north side of Olive street, where plaintiff was awaiting it, and that it had almost become motionless when it reached plaintiff, who had signalled it to stop by holding up his right hand, when it was about the middle of Olive street. Plaintiff then attempting to board the car seized hold of the car rail or handhold with his right hand, also placing his foot on the step of the platform, and as he did so the car moved forward with suddenly renewed or increased speed, his right hand was wrenched loose from the first rail, he grasped the rail of the platform, lost his balance, his foot was thrown off by the same sudden impetus which forced his right hand loose and he was thus dragged a distance variously given until his strength failed and he fell to the ground. The defendant's witnesses deposed that the car had been ordered to turn into the shed for the night, was not receiving passengers, and none were on board when it reached Olive street, the sign "Vandeventer avenue" on the front of the car having been turned by the conductor, in his words, "So it would not read anything," the motorman was giving public notice of such destination by motioning and calling out to would-be passengers as he passed them, and plaintiff endeavored to board it while moving at a rate of from five to eight miles per hour, and when the conductor discovered the perilous position the plaintiff had assumed, he signalled immediately to the motorman to stop the car. In this respect, however, there was especially a sharp conflict of fact presented, the evidence of plaintiff disclosing that the conductor stood on the rear platform, saw plaintiff thrown off his balance by the sudden start of the car and made no effort either to aid him by ringing the bell to stop or check the car, until plaintiff had fallen after having been dragged a considerable distance, which, with other measurements and estimates of distance in which the car was or could be stopped and the like, were variously and differently computed and given by the witnesses of the opposing parties. Plaintiff was then in his thirty-ninth year, of ponderous weight, exceeding two hundred pounds, and the seriousness of the injuries was the subject of vigorous dispute by the opposing witnesses.
The action was begun in the circuit court of the city of St Louis, whence it was transferred on change of venue to the circuit court of Audrain county, where a verdict of $ 2,250 was returned by a statutory majority of the jurymen, from judgment upon which defendant has thus appealed.
Judgment reversed and cause remanded.
George Robertson for appellant.
(1) Under the pleading and all of the testimony, plaintiff was not entitled to recover and the court should have instructed a verdict for the defendant. Schepers v. Railway, 126 Mo. 665; Meriwether v. Railroad, 45 Mo.App. 534; Zumwalt v. Railroad, 175 Mo. 288; Bardwell v Railroad, 63 Miss. 574, 56 Am. St. 842; Soloman v Railway, 103 N.Y. 437, 56 Am. Rep. 843; McMurtry v. Railroad, 67 Miss. 601; Phillips v. Railroad, 49 N.Y. 177; Carroll v. Rapid Transit Co., 107 Mo. 653; Bacon v. Railroad, 143 Pa. St. 14. (2) The defendant would become liable for its negligence only after it had discovered the danger to which plaintiff had exposed himself. Surggert v. Railroad, 75 Mo. 475. (3) The verdict is contrary to the following instructions, given at the request of defendant, Nos. 7, 8, 9, 10, 11 and 12. Objection by defendant's counsel, and its calling of the attention of the court this language, and asking for the court's interference with that line of argument only served to embolden the counsel and cause him to increase his exaggerated and unwarranted statements so as to render this trial a mockery of justice. Not only are the remarks of counsel objectionable but the refusal of the court to interfere in any way, renders the error doubly prejudicial. Under the following authorities, for these errors alone, the judgment should be reversed. Evans v. Town of...
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