McMiens v. United Rys. Co. of St. Louis.

• Citation: 274 Mo. 326,202 S.W. 1082
• Decision Date: 09 April 1918
• Docket Number: No. 19090.,19090.
• Parties: McMIENS v. UNITED RYS. CO. OF ST. LOUIS.
• Court: United States State Supreme Court of Missouri

202 S.W. 1082

274 Mo. 326

McMIENS v. UNITED RYS. CO. OF ST. LOUIS.

No. 19090.

Supreme Court of Missouri, Division No. 2.

April 9, 1918.

Rehearing Denied April 26, 1918.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Mrs. S. E. McMiens against the United Railways Company of St. Louis. Judgment for defendant, and plaintiff appeals. Affirmed.

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 500 to 1,000 passengers use that platform hi a day.

The plaintiff, in company with two granddaughters, who were about 12 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 30 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 4 months after the accident, he stayed 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:

"Q. Now, as you approached this stopping place at Tamm and Manchester avenues, state whether or not you came along this traveled way across the Frisco and the Missouri Pacific tracks that has been mentioned. A. Yes, sir; I came over the bridge and along that path. Q. Now, as you neared the platform, did you see a street car coming from the west? A. Yes, sir; I seen a street car coming; I was hurrying to get it. Q. Now, just state what occurred from the time you noted the car coming until you were injured, in your own way. A. Well, my one little granddaughter ran on, and this other one was with me, and I was hurrying on, and I went on up this path, and when I got ready to turn, just as I went to turn, the car hit me, and that is about the last that I knew of it. Q. Now, state whether or not you anticipated or expected the car to run down beyond the end of the platform. A. No, sir.

"By the Court: Were there any other persons there to get on the car at that time? A. I think there were, but I don't know; I know my little granddaughter was up on the platform.

"By the Court: At the usual stopping place? A. She had run on ahead of us, the one. "By...