Lucas v. St. Louis & S. Ry. Co.

• Decision Date: 18 March 1903
• Court: Missouri Supreme Court
• Parties: LUCAS v. ST. LOUIS & S. RY. CO.

73 S.W. 589

174 Mo. 270

LUCAS v. ST. LOUIS & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 18, 1903.

STREET RAILWAY—MAINTAINING STUMP IN PLATFORM—INJURY TO PROSPECTIVE PASSENGER.

1. A street railway which builds a platform for passengers around a stump placed by an electric light company in a street is not liable, on the ground of maintaining the stump, to one who, hurrying to catch a car, fell over it.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by Ella Lucas against the St. Louis & Suburban Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

This is an action for damages for personal injuries. There was a verdict for $3,000, and the defendant appealed. The constitutionality of the jury law is called in question, and that gives this court jurisdiction. The negligence charged on the petition is "that at or near the intersection of Euclid avenue and defendant's right of way in the city of St. Louis the defendant at the times herein mentioned was maintaining a platform to enable passengers to get on its cars bound east; that in the said platform, which was of granitoid, there was a stump about eleven inches in height, and defendant was negligently maintaining said platform at said times with said stump therein, which was a dangerous obstruction to passengers intending to get upon defendant's cars from said platform; that on the 1st day of January, 1900, the plaintiff was upon said platform, intending to become a passenger upon defendant's east-bound car, and, whilst she was signaling the car to stop for her as a passenger, her foot struck said stump, and she fell from said platform upon defendant's track, and was struck and dragged by defendant's east-bound car, and was thereby greatly and permanently injured." The answer is a general denial and a plea of contributory negligence.

The case made is this: The parties stipulated that in 1857 Charlotte Lay dedicated to the county of St. Louis a strip of land 80 feet wide, running north and south, as a public road, and called it "Lay Avenue." At that time there was no railroad there. Subsequently the Narrow Gauge Railroad was built, and it crossed the said road. The defendant is the mesne grantee of that railroad, and operates a street railroad across said strip of land. When the city limits were extended so as to embrace this territory, the city changed the name to "Euclid Avenue." At that time the street was an unimproved dirt road, and there were no sidewalks. At a time not disclosed by the evidence, the Missouri Edison Electric Lighting Company placed one of its poles in the sidewalk on the east side of said Euclid avenue. The pole was about 12 inches in diameter, and stood a little to the right of the middle of the sidewalk. The defendant owns its own right of way, but, of course, does not own the street. It only crosses the street by permission. The pole stood entirely within the lines of the street, and no part of it was upon the defendant's right of way. Formerly, for the convenience of the traveling public, the defendant constructed a wooden platform, 7 or 8 yards in length, and 3 or 4 feet wide, and which ran parallel with its tracks, and which was partly upon its right of way and partly upon the sidewalk—in fact, extending across the sidewalk on the east side of Euclid avenue. The pole aforesaid being already there, the platform was built around the pole. The platform was raised from 4 to 6 inches above the ground. Thereafter the lighting company sawed down the pole and beveled the edges, but left the stump of the pole projecting about 11 inches above the platform. The lighting company then put up a pole in the sidewalk, to the east of the stump, and nearly touching it, and nearer the east side of the sidewalk. Thereafter the defendant removed the wooden platform, and replaced it with a granitoid platform, and left the stump and the new pole standing; building the granitoid platform around them. Immediately south of the granitoid platform there is an alley running eastwardly, which is paved with brick. Immediately south of the alley there is a drug store, and south of that a butcher shop, both of which have large glass windows, and are brightly lighted. In front of these two stores there is a cement sidewalk. South thereof there does not appear to be any improved sidewalk, and the street does not appear to be improved. The plaintiff's daughter lives, and has for some time lived, on the east side of Euclid avenue, just a short block south of the railroad. On the tall pole aforesaid there was an electric light. The defendant's car that was approaching had a headlight. So that between the lights in the windows of the drug store and the butcher shop, and the electric light on the tall pole, which was almost touching the stump, and the headlight on the approaching car, the place was well lighted, and the stump could have been easily seen. The plaintiff was familiar with the place, and knew of the existence of the stump on the platform, and had frequently spoken of it and wondered why it was allowed to remain there. She visited her daughter frequently, and always got off and on the car at that place. On January 1, 1900, she visited her daughter. About half past 5 o'clock she started home. It was dusk, but not dark. As she approached the platform she saw the car coming from the west, and, fearing she would be left, when she was 70 or 80 feet from the track she increased her pace and ran, signaling the car as she ran. She reached the platform, got up on it in safety, and, while signaling the car to stop, she stumbled against the stump of the old pole, and was thrown against the side of the car, near the rear portion thereof, and seriously injured.

For the plaintiff the court gave the following instructions, which are claimed to be erroneous:

"If the jury find from the evidence in this case that the defendant on the 1st day of January, 1900, was a carrier of passengers for hire by street railroad, and, as such, had erected and was maintaining the platform mentioned in the evidence for the purpose of receiving passengers therefrom bound east from Euclid avenue, then the defendant was bound, in duty, to exercise ordinary care to keep said platform reasonably secure and safe for passengers who should be thereon for the purpose of entering defendant's cars therefrom; and if the jury find from the evidence that on said day there was existing in said platform a stump of...