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

Decision Date25 May 1904
Citation183 Mo. 119,81 S.W. 1158
CourtMissouri Supreme Court
PartiesMAGRANE v. ST. LOUIS & S. RY. CO.

Appeal from Circuit Court, St. Charles County; E. M. Hughes, Judge.

Action by William P. Magrane against the St. Louis & Suburban Railway Company. From a judgment for plaintiff, defendant appeals. Conditionally affirmed.

McKeighan & Watts, Robt. A. Holland, Jr., and Jefferson Chandler, for appellant. Thos. T. Fauntleroy and T. F. McDearmon, for respondent.

VALLIANT, J.

The defendant owns and operates a system of street railroads in the city of St. Louis and the county of St. Louis. On September 7, 1900, a collision occurred between two cars of defendant that were running on the same track, each in the opposite direction to the other. The plaintiff was a passenger on one of the cars, and received personal injuries in the collision; that is, he was not on the car at the instant it came in actual collision with the other, but when the danger of collision was imminent there was a panic rush of the people on the car to escape, and the plaintiff, standing on the front platform, was pushed off by the mass of the escaping people, and fell to the ground an instant before the cars struck each other. He sues for damages, alleging that the collision was caused by the negligence of the defendant. The answer to the petition is a general denial and a plea of contributory negligence. This collision has been brought to the attention of this court in two other cases, where passengers were injured in it (Malloy v. St. Louis & Suburban Ry. Co., 173 Mo. 75, 73 S. W. 159; Hennesy v. St. Louis & Suburban Ry. Co., 173 Mo. 86, 73 S. W. 162), and the evidence in the case at bar as to the collision, so far as its legal effect is concerned, is substantially the same as in those two cases. That part of the defendant's railroad with which we are now concerned was a single track. Just before reaching Romona Park from the west, there is a curve in the road, which prevents the motorman on a car going either way from having a long view of the track. On this occasion the car on which plaintiff was a passenger had left Kinloch Park, headed for St. Louis, and was approaching Romona Park. The car was so crowded with passengers that plaintiff, with a number of other persons, was on the front platform. It was 6:30 o'clock in the evening, about twilight. As this car was going around the curve, the headlight of another car coming from the opposite direction was seen by the motorman at the distance of 150 or 170 feet. There is a conflict in the evidence as to the speed at which the car in which the plaintiff was going when the danger appeared. Plaintiff's witness estimated it to have been 20 to 30 miles an hour; defendant's witness, 12 to 15. The motorman immediately applied the brakes and reversed the power, and by the time the collision occurred the speed was much reduced. The other car was coming about 6 miles an hour, and its motorman likewise applied the brakes and reduced the speed as much as possible. As soon as the headlight was seen a panic occurred in the car in which the plaintiff was, and a rush was made by the passengers to jump off. The motorman joined in the rush, and as the plaintiff was in the way he was pushed or carried off by the impetus and fell to the ground. He testified that just as he struck the earth he heard the crash of the cars coming together. He received a serious hurt, the nature of which we will discuss hereinafter. The case was given to the jury under instructions, some of which are complained of and will be presently considered. There was a verdict for the plaintiff for $7,500, and judgment accordingly, from which this appeal is taken.

1. The first instruction for plaintiff is as follows: "(1) The court instructs the jury that, having received the plaintiff upon board of one of its cars as a passenger for the purpose of transportation along its line, the due obligation of the defendant railroad was to the plaintiff and its other passengers on that car, as far as it is capable by human care and foresight to carry such passenger safely, and the defendant is responsible for all injury resulting to such passenger from any, even the slightest, neglect or negligence; and, when the passenger suffers injury by a collision resulting from two cars being run in opposite directions on the same track, the presumption is that it was occasioned by some negligence of the defendant railroad, and the burden of proof is cast upon defendant to rebut this presumption of negligence, and establish the fact that there was no negligence on its part, and that the injury was occasioned by inevitable accident, or by some cause which human precaution or foresight could not have avoided."

The defendant contends that this instruction is erroneous in several particulars: First, that it imposes on the carrier a higher degree of care than the law justifies. The language used in this instruction, declaring it was the duty of the defendant, "as far as it is capable of human care and foresight, to carry such passengers safely, and the defendant is responsible for all injury resulting to such passengers from any, even the slightest, neglect or negligence," is copied from the opinion of the court in Clark v. Railway, 127 Mo. 197, 29 S. W. 1013. The court, however, in using that language, was not discussing an instruction containing those words, and was not prescribing the form of an instruction. It is not always safe to take an excerpt from an opinion and embody it in an instruction, because the opinion is addressed to lawyers, while the instruction is addressed to laymen. The care which a carrier owes to its passenger is of a very high degree. In attempting to give it definition a variety of forms of expression have been used, as the learned judge who wrote the opinion in that case mentioned, and after giving some of them he said: "The various formulas amount to the same thing in principle." It is a very high degree of care, but not the utmost care that human imagination can conceive. It is the highest degree of care that can reasonably be expected of prudent, skillful, and experienced men engaged in that kind of business. The term "as far as is capable by human care and foresight," in this connection, is liable to be misconstrued by...

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