McLeland v. St. Louis Transit Co.

• Decision Date: 15 March 1904
• Citation: 80 S.W. 30,105 Mo. App. 473
• Parties: McLELAND v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

80 S.W. 30

105 Mo. App. 473

McLELAND v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

March 15, 1904.

STREET RAILWAYS—INJURIES TO PEDESTRIANS —NEGLIGENCE — CONTRIBUTORY NEGLIGENCE —QUESTION FOR JURY—INSTRUCTIONS—CONCURRENT NEGLIGENCE — DEPARTURE FROM PLEADINGS—PARTIES—REAL PARTY IN INTEREST — ASSIGNMENT OF UNLIQUIDATED CLAIM—EFFECT.

1. Under Rev. St. 1899, § 540, providing that every action shall be prosecuted in the name of the real party in interest, except in certain cases, but which expressly recites that it shall not be deemed to authorize the assignment of a thing in action not arising out of contract, an unliquidated claim for personal injuries cannot be assigned, and an attempted assignment of a part thereof to an attorney does not render him a party in interest in an action for the injuries.

2. From testimony that, while defendant's car had stopped, and passengers were alighting, plaintiff sought to pass in front of the car, which was started without any signal to her, it could be fairly inferred that the motorman saw, or should have seen, plaintiff's effort to get by the car.

3. A pedestrian in the most crowded portion of a large city, who seeks to pass in front of a stationary car, in plain view of the motorman, is not guilty of contributory negligence, as a matter of law, but the question of due care on his part is for the jury.

4. A motorman at the junction of two of the most prominent thoroughfares in a large city, in frequent and constant use by pedestrians and vehicles of every sort, should exercise a degree of care commensurate with such conditions, and is charged with knowledge that the diligence which might suffice in less populous and traveled parts of the city would fall short of constituting ordinary care in such thronged portions.

5. In an action against a street railway for injuries to a pedestrian attempting to cross in front of a stationary car, where the defense was that the car was moving, and that plaintiff was negligent in stepping immediately in front of it, it was not sufficient for the court to charge that the burden throughout rested on plaintiff to establish that her injuries were caused solely by the negligence of defendant, and without fault on plaintiff's part, but defendant was entitled to a sharply defined and concise instruction that, if plaintiff's injuries resulted from the concurrent and mutual negligence of both herself and defendant, defendant was not responsible therefor.

6. In an action against a street railway for injuries to a pedestrian, where plaintiff's evidence was that the car had stopped two feet from the crossing on which she started to pass over defendant's tracks, and the negligence assigned was the act of the motorman in charge of a motionless car in recklessly starting it, and there was no averment that the casualty resulted from failure to stop a moving car, it was error for the court to qualify a charge to find for defendant if plaintiff stepped in front of the car when she knew it to be moving by adding, "if the motorman could not have stopped the car after he either saw, or could have seen by using ordinary care, that plaintiff was in a position of danger."

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by Lettie McLeland against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehman, for appellant. Fred L. Vandeventer, for respondent.

REYBURN, J.

On the 26th day of April, 1902, the plaintiff, Miss Lettie McLeland, a resident of Madison, Ill., but familiar with the operation of street cars, and a frequent visitor to St. Louis, about midday walked northward on the west side of Broadway to south side of Washington avenue. She narrates that she stopped at the corner, as she stated, to see where the cars were, and observed an east-bound car about the middle of the block towards Sixth street, and she then continued to within five feet of the track, waiting for the car to pass. It stopped to let two passengers off, and plaintiff proceeded to cross the track, and, when about one-third of the way, the car was put in motion without signal, and, starting forward, struck plaintiff on the ankle, and she fell backward, sustaining the injuries, the basis of this action. A police officer promptly rendered her assistance, and, declining his suggestion to have an ambulance summoned, with his aid she took a Broadway car, and, though in pain, crossed by the ferry homeward. The petition, after formal averments of incorporation of defendant and its operation of the street railway system, thus presented her cause of action: "That at said time Washington avenue, at the intersection of Broadway, at the place hereinafter mentioned, was an open public highway within the city of St. Louis; that on or about, to wit, the 26th day of April, 1902, plaintiff was lawfully crossing from the south side of Washington avenue to the north side, and on the west side crossing or passageway, when she was struck by one of the defendant's eastwardly bound cars in charge of an agent of the defendant; that the striking of plaintiff by said car was directly due to the negligence of the defendant's agent, the motorman in charge of said car, in the following particulars, to wit: That as the plaintiff was crossing said east-bound track, and just as she was nearly across the same, the motorman in charge of a still and motionless car negligently, carelessly, and recklessly caused the same to start, and to strike and injure plaintiff; that the motorman in charge of said car, prior to the striking of plaintiff, negligently failed to sound a gong, or give other warning or notice of the fact that the said car was about to be put in motion and moved forward; that the defendant's motorman negligently and recklessly failed to keep a lookout for persons on or near the track on which his car was about to be put in motion and moved forward, when, by the use of ordinary care in keeping a watch for such persons, he would have discovered plaintiff in a position of danger, and would not have caused his car to move forward when plaintiff was upon or near said track, and in danger of being struck by said car if it was started. And the plaintiff avers that the striking of plaintiff by defendant's said car on said occasion was directly due to the aforesaid acts of negligence on the part of defendant." The hurts inflicted were then detailed, damages in a substantial sum therefor charged, and judgment prayed. The answer incorporated a general denial; a plea of contributory negligence, in that the alleged injuries were caused by her own negligence in going upon the track in front of a moving car at a time and place when and where she might have seen and heard the approaching car in time to have kept off the track and avoided the injury, and that she was further negligent in getting into such proximity to such moving car that she stepped on the fender in front of it, and was struck by the fender on the ankles and thrown down. The answer also contained the following special plea: "And for a further answer, defendant...