McClanahan v. St. Louis Public Service Co.

• Decision Date: 11 September 1951
• Docket Number: No. 28064,28064
• Citation: 242 S.W.2d 265
• Parties: McCLANAHAN v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

Page 265

242 S.W.2d 265

McCLANAHAN v. ST. LOUIS PUBLIC SERVICE CO.

No. 28064.

St. Louis Court of Appeals, Missouri.

Sept. 11, 1951.

Mattingly, Boas & Richards, Lloyd E. Boas, St. Louis, for appellant.

Paul H. Koenig, William L. Mason, Jr., Wm. E. Dietz, St. Louis, for respondent.

HOUSER, Commissioner.

This is an action brought by the next friend of a 10 year old boy for personal injuries sustained by him when he fell from the outside of a moving street car belonging to the defendant. As a result of the fall plaintiff's left leg was badly mangled requiring an amputation 5 inches below the knee. A circuit court jury awarded plaintiff $6,000 whereupon defendant appealed from the judgment of the trial court overruling its motion for judgment pursuant to its motion for a directed verdict. The appeal is based on two grounds: first, that plaintiff was a trespasser on defendant's streetcar; was guilty of contributory negligence as a matter of law, and is, therefore, not entitled to recover on primary negligence; second, that the evidence failed to establish a submissible case under the humanitarian doctrine.

The verdict-directing instruction upon which the cause was submitted to the jury, plaintiff's Instruction No. 1, is as follows: 'The Court instructs the jury that even though you may find and believe from the evidence that the plaintiff was a trespasser on the street car described in the evidence and was himself guilty of negligence which directly contributed to cause his injury, if any, nonetheless, you are instructed that if you find and believe from the evidence that on the occasion shown to you in the evidence the said street car was operated by the defendant, through its motorman; and if you further find and believe from the evidence that the plaintiff obtained a hold on the outside of the street car at the middle exit doors and clung to it while it was in motion; and if you further find and believe from the evidence that the plaintiff was then and there in a position of imminent peril; and if you further find and believe from the evidence that the motorman saw plaintiff in such position; and if you further find and believe from the evidence that thereafter the motorman directly caused the street car to increase speed and give and make a sudden jerk; and if you further find and believe from the evidence that the motorman thereby failed to exercise ordinary care in the use of the means and instrumentalities at hand, and for plaintiff's safety, after he saw plaintiff in a position of imminent peril; and if you further find and believe from the evidence that plaintiff was thrown from, or fell from, the said street car, directly due to the said increase of speed and jerk; and if you further find and believe from the evidence that the plaintiff was injured; and if you further find and believe from the evidence that his injury was directly due to being so thrown or falling from the said street car; then you are instructed that your verdict should be for the plaintiff and against the defendant.'

Our duty is to examine the whole record to determine whether the evidence, considered in the light most favorable to plaintiff, together with all reasonable inferences to be drawn therefrom, and disregarding all evidence to the contrary from the defendant's witnesses unless it aids plaintiff's case, makes a submissible case under the humanitarian doctrine. Smith v. Siedhoff, Mo.Sup., 209 S.W.2d 233.

The evidence, stated in this light, eliminating all irrelevant material, shows that on May 21, 1946 at the western terminus of the Cass line, one of defendant' streetcars stopped at the 'loop' which was then located at Belt and St. Louis Avenues; that the plaintiff and other boys were 'playing around' the streetcar; that the car at the time it was boarded by the plaintiff was going downtown, headed east; that as the street car started, according to one witness, or while it was traveling between 5 and 10 miles per hour, according to another, the boy ran out from the curb, jumped up and grabbed onto the side of the car at the rear double exit door on the right-hand side of the streetcar, holding onto 'two things' with his hands (apparently iron grab bars or handholds) and with his toes on 'that little ledge by the door'--'* * * a little place you put your feet on.' After the streetcar left Belt Avenue it went '* * * slow a little bit, then started speeding up' until it was going 25 or 30 miles per hour when it reached the alley 100 feet east of Belt Avenue. At the time the boy fell off the streetcar it was approximately in front of 5468 St. Louis Avenue. Plaintiff testified that after he jumped onto the side of the streetcar and as he was hanging onto the side of the car the motorman 'turned toward the back * * * turned around and looked at me and motioned to me three times, and then he speeded up * * *.' A motorist following the streetcar observed that the motorman was 'making these motions * * * seated this way and turned around facing south * * * facing the rear and he was making motions'; the motorman 'flagged him off and the kid refused to get off * * * We had traveled between 20 and 30 yards. At the time I observed the motorman give him the second wave back * * * he was turned around and looking southwest. He was traveling east and looking southwest * * * in the direction of the center door * * * the motorman waved back * * * in that general direction towards the middle door * * * the streetcar * * * made a lunging motion, it lunged * * * the streetcar lunged forward * * * Momentarily the streetcar picked up speed, a great amount of momentum, and it held it, I would say, for about 2 or 3 feet. It dropped the speed * * * when the car picked up speed * * * I am almost certain that this is what shook the boy off * * * the motorman was gesturing at the back door.'

The boy testified as follows:

'Q. After you felt the car speeded up what, if anything, else did you feel or notice? A. My hand was giving away. * * * When he speeded up he give a little jerk. My hands gave away right then.

'Q. After that took place what happened to you? A. I fell.'

He further testified that when the car shook he 'lost his balance.'

Witness Harold F. Boyer testified that the boy was 'thrown off the streetcar' and landed on his feet but could not 'keep his feet' because of the speed of the streetcar. He further testified that he saw the boy run out from the curb and grab the streetcar and that the streetcar traveled about 80 feet before the boy fell off.

Witness Harry J. McMackin saw the boy 'hanging near the rear windows on the right side of the streetcar' behind the rear door, hanging onto the horizontal bars that guard the windows, and stated that he had his feet 'pulled up'.

The operator of the car, Walter Grzeskoviak, testified that he could have brought the streetcar to a gradual stop if he wanted to--there was nothing there to prevent him from so doing. In his deposition the operator stated he could not say whether he did or did not jerk the streetcar.

One of plaintiff's playmates, Lon Raymond Hutchcraft, testified that he 'watched Billy and when the car had gone about 2 blocks it looked to me like Billy turned around and jumped off of the car,' while another boy who was at the scene, one Edward Rudolph Braska, testified:

'Q. How far down did the streetcar go before anything happened? A. About the middle of the block.

'Q. What, if anything, did you see when the streetcar got about the middle of the block? A. It seemed like someone was jerking him.

'Q. What seemed like that? A. On the streetcar. It seemed like the streetcar was jerking.

'Q. It did? A. Yes. * * *'

The witness later testified 'I guess the driver did make it go faster * * * it seemed like it went faster.'

One Prothero testified that looking into the mirror of a 900 type streetcar such as the one involved in this tragedy you could see the 'whole interior of the car all the way to the rear.'

Plaintiff's Exhibit 9, a photograph, shows the handles outside the streetcar at the exit doors with the doors closed and there was expert testimony that this photograph shows what an operator could see by his rear view mirrors.

As to the first point: plaintiff's brief acknowledges that plaintiff was a trespasser on defendant's streetcar and that recovery on primary negligence is barred, so that the first assignment on this appeal is eliminated.

The sole question for decision, therefore, is whether plaintiff made a humanitarian case. As stated by respondent, the formula requires the following proof: (1) that plaintiff was in a position of imminent peril; (2) that defendant had notice thereof; (3) that defendant after receiving such notice had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; (4) that he failed to exercise ordinary care to avert such impending injury; and (5) that by reason thereof plaintiff was injured.

Even a trespasser can recover under the humanitarian doctrine in a case of discovered peril. Hall v. Missouri Pac. R. Co., 219 Mo. 553, 118 S.W. 56; Quirk v. Metropolitan St. Ry. Co., 200 Mo.App. 585, 210 S.W. 103. In the former case the court said, 219 Mo. loc. cit. 586, 118 S.W. loc. cit. 65: 'The status of plaintiff being fixed as that of a trespasser, the only duty owing to him by the defendant was to use reasonable care not to injure him after he was discovered and known to be in a place of imminent danger or peril.'

Does the humanitarian doctrine apply? Counsel for plaintiff practically concedes that 'plaintiff was not in the legal position of imminent peril from what the streetcar was doing as he clung to it as it moved along.' Plaintiff's claim under the humanitarian doctrine is based upon the proposition that plaintiff was in a position of imminent peril 'from what the operator was about to do * * * what the operator was going to do--speed up the car and jerk the car'; that...