Lyons v. Wells

• Decision Date: 03 March 1925
• Docket Number: No. 18538.,18538.
• Citation: 270 S.W. 129
• Parties: LYONS v. WELLS.
• Court: Missouri Court of Appeals

270 S.W. 129

LYONS v. WELLS.

No. 18538.

St. Louis Court of Appeals. Missouri.

March 3, 1925.

Rehearing Denied March 31, 1925.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

Action by Lillie Lyons against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

W. Paul Mobley, of St. Louis, for appellant.

T. E. Francis and W. H. Woodward, both of St. Louis, for respondent.

BRUERE, C.

This is an action for damages on account of personal injuries received through the alleged negligence of defendant. The case was tried before the court and a jury and resulted in a verdict and judgment for defendant, from which judgment plaintiff prosecutes this appeal.

The petition, inter alia, averred that on the 15th day of September, 1921, the plaintiff was operating an electric street car line on Grand avenue, in the city of St. Louis, as a common carrier of passengers for hire; that Grand avenue and Washington avenue were intersecting public streets in said city of St. Louis ; that on said day, at about 10:15 o'clock p. m., plaintiff was standing on Grand avenue, near its intersection with Washington avenue, on the north side of said Washington avenue, and at the place where persons usually stand for the purpose of boarding south-bound Grand avenue cars; that she was standing there for the purpose of boarding a south-bound Grand avenue car; that while standing at said place, one of defendant's south-bound Grand avenue cars approached from the north ; that when the front door of said car was alongside plaintiff, and the car was still in motion, the defendant's agents and servants, in charge of said car, caused said door to fold out and carelessly and negligently permitted said car to run a distance of from 10 to 15 feet with the door of said car standing open; that the defendant, through its agents and servants in charge of said car knew, or by the exercise of ordinary care could have known, that if the door of said car was open and caused to fold out while the said car was still in motion the plaintiff was liable to be struck by said door and pushed along and injured; that plaintiff was struck by the rear part or fold of said door and pushed forward a distance a 10 to 15 feet and was thereby injured.

The answer is a general denial.

Appellant assails the judgment herein on the ground that the trial court erred in giving the following instructions in behalf of the defendant :

(3) "The motorman of defendant's car, approaching the stop at Washington avenue, had a right to assume that any person standing in a place of safety would remain in such place of safety and would refrain from walking into any part of the car.

"Therefore, if you find and believe from the evidence that as the car approached Washington avenue defendant's motorman opened the door for the purpose of admitting passengers, and that at that time plaintiff was in the place of safety, and if you further find and believe from the evidence that after the front or right portion of the door had passed her she voluntarily passed from such place of safety to a place where she was in danger of being struck by the left or reir portion of said door, then she cannot recover, and your verdict must be in favor of the defendant."

(4) "If you find and believe from the evidence that as defendant's car approached plaintiff the doors were open, and that she saw they were open, and that thereafter the right or front part of the door passed plaintiff, that she thereafter voluntarily stepped between said doors, if you so find, then your verdict must be in favor of the defendant."

The objections raised to said instructions are: First, that there is no evidence in the case on which to base said instructions ; and, second, that said instructions submitted to the jury the question of plaintiff's contributory negligence, when that issue is not in the case, not having been pleaded.

Regarding the manner in which the accident occurred, the plaintiff testified as follows:

"I was going to board the car at Grand and Washington, to go south, and there was quite a crowd of people there, somewhere between 20 and 30. They were all standing out there at the usual place to take this car, and just as the car, the front end of the car, got about even with us, or just as it was just opposite me, it opened—the front doors opened. The front door missed me, but the crowd being there, I couldn't get back far enough, and the back door hit me after it had opened out. This door hit me. I seen it was going to hit me, and I got back as far as I could, and I turned like this, and it got me right down here (indicating) about halfway between the middle of the back and the end of the spine, and on the left hip. I grabbed this rod that runs up and down just inside of the doors that makes the dividing line between the doors, and held to that, and that kept me from falling. * * * I can't say how many times the door hit me. I was thinking about trying to hold my feet on the ground to keep from falling. It hit me more than once. * * * I will say I was standing 6 inches, maybe a foot, from the car. The front end of the car had cleared me by 6 inches to a foot. At that time and at other times I have observed the doors of the front ends of Grand avenue cars. They extend out anywhere from 12 to 14 inches from the side of the car when they are open. * * * The door struck the left hip and about halfway between the end of the spine and the small of the back. I was not knocked down by the car. My limbs right here was struck by this rod in the door, and then all along here (indicating) that first step was hitting me. I moved along with the car; I had hold of this rod and moved along with the car. It is something like 3 feet from this rod to the rear door of the car. This is the type of car that has two passageways into the front entrance, divided by this rod or rail that I speak of. * * *"

On cross-examination plaintiff testified as follows:

"Q. And the car came up with its doors open? A. They opened as it got opposite me.

"Q. They opened before they got to you, didn't they? A. Just opposite to where I was; just almost in front of me. * * * "Q. You say the first door missed you? A. Yes, sir.

"Q. The door opened, but missed you? A. It was opened just opposite to me, so as to not hit me as it went by.

"Q. When you speak of the car door we are talking here simply about the front entrance to the car? A. Yes, sir.

"Q. And the front door.you mean would be the door to your right as you face the entrance? A. Yes, sir.

"Q. And the rear door you refer to is the door to your left as you face the entrance? A. Yes, sir.

"Q. Now, as a matter of fact, didn't the people behind you crowd you? A. They didn't shove me; I don't know that they crowded exactly, but you know how people will do; you know they all want to get on there, but there. was no what you could say pushing or shoving.

"Q. There wasn't? A. No, sir.

"Q. But as the car came up they all crowded forward, didn't they? A. Yes, sir.

"Q. You could feel the pressure of the people at your back? A. I knew they were there, but I can't say they were pressing up right against me.

"Q. Now, as a matter of fact, the front one of these two doors, or the right-hand doors, extends out just the same distance from the street car as the rear door, or left-hand door, does it not? A. Certainly.

"Q. Now, you boarded the car subsequently? A. Yes, sir; by holding to this rod; yes, sir.

"Q. Were there men in this crowd behind you? A. Men and women, too.

"Q. Any of them assist you? A. No, sir.

"Q. They saw you being dragged along the street in that way? A. I wasn't dragged; I helped myself; I had hold of that rod and walked.

"Q. You held to this rod and walked along with the street car? A. I certainly did.

"Q. You weren't dragged at all? A. I never said I was dragged.

"Q. Now, this rod you speak of is in the center of the doorway and stands upright, does it not? A. Yes, sir.

"Q. And as you were holding that you were holding that rod with which hand? A. With my right hand.

"Q. And walked along with the car as it moved forward, is that it? A. Yes, sir.

"Q. You were never carried off of your feet? A. I can't say that I was; I kept my foothold.

"Q. Now, each one of these doors is composed of how many sections?. A. Two."

Relcie Jackson, a witness for plaintiff, testified as follows:

"Q. Now tell the jury what happened as you saw it. A. She was standing where she should be standing to get on the car, and when the car came up, just as it got even with her, just where it should have stopped, the doors opened, but the car didn't stop; it ran on past her. When the doors opened, it threw her right between the doors, see? I don't know; just seemed like she turned some way and it caused the door to kind of hit her in the back and on the...