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

• Decision Date: 29 March 1904
• Court: Missouri Court of Appeals
• Parties: McCARTY v. ST. LOUIS & S. RY. CO.

80 S.W. 7

105 Mo. App. 596

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

St. Louis Court of Appeals. Missouri.

March 29, 1904.

CARRIERS—INJURY TO STREET CAR PASSENGER— BOARDING CAR AT UNUSUAL PLACE—DUTY OF LOOKOUT BY CARMEN—SAFETY OF HANDRAIL — "RES IPSA LOQUITUR"—DUTY TOWARDS PROBABLE LICENSEE.

1. Carmen are not under obligation to guard against negligently starting the car so as to throw a person who attempts to board it on the wrong side of a street crossing, where the car has stopped to throw a switch, where they have no actual knowledge of his position, and the only testimony to show that it was usual to receive passengers at that point is that of the injured person, who merely states that he had previously seen persons board the car where he did.

2. The doctrine of res ipsa loquitur applies to a handrail on a street car, used by passengers to assist them in boarding and alighting, and which gives way in the hand of a passenger struggling to regain his balance on the car's suddenly starting.

3. A street car company is under obligation, to a person who attempts to board a car at an unusual place without the knowledge of the carmen, to use ordinary care to keep the handrail used by passengers in boarding and alighting in proper repair.

Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by William G. McCarty against the St. Louis & Suburban Railway Company. Judgment for defendant, and plaintiff appeals. Reversed.

Carter & Sager, for appellant. McKughan & Watts and R. A. Holland, for respondent.

GOODE, J.

This plaintiff got hurt in attempting to board one of the defendant's cars. The accident occurred on Seventh street, a little south of Franklin avenue, in St. Louis, about 6 o'clock p. m. December 2, 1902. The car in question at that time ran from Locust to Seventh, thence north to Franklin avenue, and thence west over the tracks of the St. Louis Transit Company, pending repairs to the defendant's tracks on Seventh street. There was a switch just south of Franklin avenue, but not at the crossing, and the car stopped to throw the switch, so as to go round the curve in the track into Franklin avenue. Plaintiff was awaiting its arrival, anticipating that it would stop. He said it did so, and that he stepped on the first step of the rear platform, and had his other foot raised above the second step, when the car started, and destroyed his balance, and he grabbed a handrail, which gave away in his struggles to maintain his position on the step, threw him on the street, and hurt him. Other witnesses swore plaintiff attempted to board the car while it was moving. The acts of negligence charged against the defendant are starting the car suddenly, before the plaintiff was fairly on, and allowing the handrail to become loose, when, by the exercise of care, its unsafe condition could have been detected and repaired. The answer, besides a general denial, alleges that plaintiff's own negligence in boarding the car while it was in motion caused or contributed to his injury. An ordinance of the city of St. Louis was introduced, which required street cars to stop on the far crossings of intersecting streets to receive passengers, and motormen to bring their cars to a full stop at such corners when requested or signaled by a person standing thereat and desiring to take passage. It will be observed that the plaintiff attempted to board the car slightly south of the near crossing, instead of at the west or far crossing, of Seventh street and Franklin avenue. He stepped on the car when it stopped to throw a switch just south of Franklin avenue, and justified his action by testifying that he had seen others do so. Plaintiff admits, however, that the west crossing was the usual and customary place for taking passage on street cars. There was no testimony that either the motorman or the conductor saw the plaintiff before or at the time he attempted to get aboard, or knew he desired or was trying to become a passenger. The motorman was at his proper place, on the front platform, while the conductor was at the center of the car, inside, and was not shown to have been looking toward the plaintiff. Complaint is made here of the refusal of the court to grant two instructions. One related to the handrail, and will be noticed further on. The other was that if, while the plaintiff was attempting to board the car for the purpose of becoming a passenger, and while he was in the exercise of ordinary care, he was thrown to the ground and injured through the negligence of the servants of the defendant in charge of the car in starting it before he was safely aboard, the verdict should be for him, provided said servants knew, or by ordinary care might have known, before starting the car, that he was boarding it, and had not reached a place of reasonable safety. The court gave that instruction, not as asked, but with a modification that, if the carmen knew the plaintiff was boarding it when they started, the defendant was liable; omitting the hypothesis of liability if they might have known that fact by ordinary care. The defendant had a verdict, and the plaintiff appealed.

The jury were instructed on the theory that the carmen owed the plaintiff no duty when starting, unless they knew he was trying to board the car; that they were not bound to be on the lookout for passengers at that point; and hence that the jury should not be permitted to return a verdict against the defendant on a finding that its servants might have known what the plaintiff was about if they had used proper care. The theory of plaintiff's counsel is that the carmen can be convicted of negligence in starting the car while plaintiff was endeavoring to get safely aboard, if they either knew his position, or by due care might have ascertained it. The postulate of this argument is that the carmen were bound to watch for would-be passengers when they stopped the car at the switch. If the testimony had shown it was usual to receive passengers there, the plaintiff's position would be well taken. But the only testimony on the subject was his own, and it went no further than the statement that he had previously seen men and women board cars where he did. People occasionally get on street cars anywhere along a street, when they happen to stop, or even while they are running; but proof of that fact would not establish a custom to receive passengers everywhere, and bind carmen to be always alert. If there was a usage to take passengers at the switch, the carmen would have been bound to watch and be as careful about starting there as at far crossings—the common and appropriate localities for taking passage—for then persons would have a right to board cars, and the operatives good reason to expect them to do so. Washington, etc., R. R. Co. v. Grant, 11 App. D. C. 107; McNulta v. Ensch, 134 Ill. 46, 24 N. E. 631; West Chicago St. Ry. v. Manning, 170 Ill. 417, 48 N. E. 958; Id., 70 Ill. App. 239. But that people had theretofore got on cars at the switch...