McMiens v. United Railways Company of St. Louis
| Decision Date | 26 April 1918 |
| Citation | 202 S.W. 1082,274 Mo. 326 |
| Parties | MRS. S. E. McMIENS, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS |
| Court | Missouri Supreme Court |
Appeal from the St. Louis City Circuit Court. -- Hon. Wilson A Taylor, Judge.
Affirmed.
Fauntleroy Cullen & Hay for appellant.
(1) It was error to give defendant's instruction numbered 2. (a) Plaintiff had a right to presume that the motorman would stop the car, as such cars were customarily stopped, and that he would not allow it to be run beyond the platform so as to endanger her. Scott v. Met. St. Ry. Co., 138 Mo.App 201; Percell v. Railroad, 126 Mo.App. 44; Lawson v. Met. St. Ry. Co., 40 A.D. 307; Frank v. Met. St. Ry. Co., 58 A.D. 100; Zimmerman v. Union Railway Co., 3 App.Div. (N. Y.) 219; Brozek v. Steinway R. Co., 10 A.D. 360; Dunican v. Union R. Co., 39 A.D. 497. (b) By instruction numbered 2, the jury are told that if she knew the car was approaching (wherever it was and however it was, and although she was entitled to presume it would stop, before reaching the east end of the platform), then as a matter of law plaintiff was negligent in getting on the track at all. This is palpable and fatal error. Laurent v. United Rys., 191 S.W. 992. (2) It was error to give instruction numbered 3, which told the jury that if she knew the car was approaching and could by the exercise of ordinary care have remained off of the track, then she was not entitled to recover. As to this unique, ludicrous, but fatally harmful, instruction, the doctrine of res ipsa loquitur should apply. The thing (certainly) speaks for itself. (3) It was error to give the instruction on the credibility of witnesses here, where there was not only no effort at impeachment, but no contradiction of any witness. Keeline v. Sealy, 257 Mo. 498; Price v. Bldg. Co., 191 Mo.App. 404.
T. E. Francis and Thomas Bond for respondent.
(1) The demurrer to the evidence should have been sustained. (a) Because there being no duty on the part of respondent to stop the front end of the car at any particular point, there was therefore no negligence in running same beyond the east end of the platform. (b) Because the evidence is insufficient to establish a custom to stop the front end of the car west of the east end of the platform, so general, uniform, certain and notorious as to constitute a rule of conduct upon which appellant could rely in knowingly going in front of a moving car. Shields v. Sub. Belt Ry. Co., 87 Mo.App. 643; Percell v. Railroad, 126 Mo.App. 53; Pankey v. Railroad, 180 Mo.App. 199. (c) Because there is no evidence that under the last-chance doctrine respondent's motorman saw appellant in a place of danger in time to have stopped the car, or otherwise have avoided the accident. Keele v. Railroad, 258 Mo. 79; Paul v. Railroad, 152 Mo.App. 783; Zurfluh v. Railroad, 46 Mo. 642; Boecker v. Railroad, 240 Mo. 521; Hamilton v. Railroad, 250 Mo. 722; McGee v. Railroad, 214 Mo. 531; Roenfeldt v. Railway, 180 Mo. 564. (d) Because appellant was herself negligent and her negligence directly contributed to her injury. Paul v. Railroad, 152 Mo.App. 586; Cole v. Railway, 121 Mo.App. 610; Gunn v. Belt Ry. Co., 141 Mo.App. 314; Green v. Railroad, 192 Mo. 142; Holland v. Railroad, 210 Mo. 350; Slotler v. Railroad, 204 Mo. 640; McCreery v. United Rys., 221 Mo. 31. (2) Errors in instructions are harmless where a demurrer to the evidence should have been sustained. Trainer v. Mining Co., 243 Mo. 359.
Plaintiff sued for damages for personal injuries. The verdict and judgment were for defendant, and plaintiff has appealed.
The accident occurred at the intersection of Manchester and Tamm Avenues in St. Louis. Defendant has double tracks at that point, the south track being the east-bound. South of that track is a passenger platform, with its east end about the west line of Tamm Avenue. The latter street is not opened south of that point, except by a pathway leading across a footbridge over the river Des Peres to residence territory beyond. That path strikes the defendant's track just east of the platform, the exact distance not being shown. As it turns west to the platform it passes alongside the defendant's track in close proximity thereto. To what extent that path from the south is used by people passing across Manchester Avenue is not shown. From five hundred to a thousand passengers use that platform in a day.
The plaintiff, in company with two grand-daughters, who were about twelve years old, came from the south along that path, and seeing defendant's car approaching from the west, hurried to catch it. One of the children rushed upon the platform. Plaintiff was just turning west toward the platform when the car hit her, she evidently having got a little farther north than was safe. So far as we can ascertain from the evidence the path to the platform ran between a telephone pole and the track, there having been about thirty inches between the pole and the side of the car. It does not appear that there were any other persons waiting there for the car at that time.
Mr. Fish, a son-in-law of plaintiff, testified that he had previously waited there for the car about a dozen times, and had frequently traveled on that line, and that, about four months after the accident, he staid there and watched seven or eight cars pass, and that it was their custom to stop with the front end of the car west of the end of the platform.
The plaintiff testified that for two years she had taken the car at that place every two or three weeks, and that she had never noticed the car come down where it came that morning, that they usually stopped the car back by the platform. She further testified:
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