Meyers v. Wells

Decision Date23 May 1925
Docket NumberNo. 24636.,24636.
Citation273 S.W. 110
PartiesMEYERS v. WELLS.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Action by Gertie Meyers against Rolla Wells, receiver of United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed conditionally.

T. E. Francis, Charles W. Bates, and Ernest A. Green, all of St. Louis, for appellant.

Wilbur C. Schwartz and Charles E. Morrow, both of St. Louis, for respondent.

LINDSAY, C.

This is a suit to recover damages for injuries sustained by the plaintiff, as a passenger on a street car operated in the city of St. Louis by the defendant in his capacity as receiver. After setting forth the relation of the parties as carrier and passenger, the petition described the manner of the occurrence and alleged negligence on the part of defendant as follows:

"Plaintiff further states that, as said car approached what is known as about 4000 Olive street, the door of the rear platform on which plaintiff was standing was negligently allowed to remain open by the defendant's agent and servant, the conductor; that said rear platform was crowded, and plaintiff was unable to obtain a seat in said car, and was compelled to stand on the rear platform and near said door, when defendant negligently caused, suffered, and permitted said car unexpectedly to give a sudden, violent, and unusual jerk; and that thereby and by reason of said negligence aforesaid the plaintiff was thrown from said street car to the street, whereby plaintiff was injured, as follows."

The nature of the injuries claimed to have been received are then set forth, together with her loss of earnings resultant therefrom. These will be noticed further on. The answer was a general denial,, followed by an averment that whatever injuries plaintiff may have received were due to her own carelessness and negligence in alighting from a moving street car. The reply was a general denial.

Error is assigned in the overruling of defendant's demurrer to the evidence, offered at the close of the whole case, and it is urged that under the testimony plaintiff was not entitled to go to the jury under either of the charges of negligence pleaded in the petition. The evidence is to be considered in view of that contention. At the time of the injuries alleged the plaintiff was a young woman about 25 years old, and then, and for about a month before was employed by Francis Bros. Co., whose offices were on Fourth street, a little south of Olive street, and at the time, a little after 8 o'clock in the morning, she was on her way to her, place of employment. She entered an east-bound "Delmar-Olive" car, at Walton and Delmar avenues, and paid her fare. The car was entered at the rear, and was what is termed a "pay-as-you-enter" car. The box for receiving fares was placed back of the right-hand row of seats, and to the" right of the aisle, and the conductor stood facing the rear of the car, with the entrance doors to his left and not far from his hand. There was a guard rail round the fare box. The entrance doors, each between one and two feet in width, and the steps, moved in conjunction; that is, when the doors were closed the steps folded up under or against the frame of the car, and when the doors were opened the steps unfolded and extended downward, ready for use as such.

The plaintiff testified that when she boarded the car, so far as she could see, it was filled with passengers, all the seats being occupied and the aisles jammed with passengers, and that she, on that account remained on the platform, and stood near the door, and that there were other passengers on the platform. The car, proceeding eastward, crossed Taylor avenue an intersecting street, at 4500 west, and Sarah street, at 4100 west. The latter was the last stopping place before reaching the place where plaintiff was injured. Before reaching Sarah street, some additional passengers had been taken on, and in going on from Sarah street the door of the car remained open. The plaintiff testified that she was standing about a foot from the open door; that there were persons between her and the guard rail; that the platform was crowded; that there was no one between her and the door; that there was no one standing on the' step. Going east from Sarah street there is a down grade. Her testimony was that she was facing somewhat toward the southeast, or, as she expressed it, was standing somewhat "ajar," toward the door, at which time she said:

"The car gave a sudden, rather unusual, violent jerk, and I lost my balance and pitched out the door to the street."

She otherwise described it:

"Well, it just gave a violent jerk, enough to throw me off my feet—throw me off my balance."

And also:

"Well, it was an unusual, violent jerk, perhaps as though the car had suddenly decreased its speed, as though it might be going to stop."

And again:

"The car was running, and it seemed as though it slowed down in speed suddenly."

She fell from the car at a point west of Westminster Way, which was a stopping place for the car. The testimony as to the distance from the place where she fell to Westminster Way varied, but there was considerable evidence that it was at a point about 150 to 200 feet west of Westminster Way. In falling or pitching out of the door of the car, the plaintiff did not, it seems, touch the step, but fell face forward, with arms and legs outspread, to the street, and rolled to the south curb of the street, 10 or 12 feet away from the car, and was found there unconscious by the persons who came to her assistance.

Frank Waldman, produced by the plaintiff, testified that he was driving his machine eastward behind the car from which plaintiff fell; that he was 25 or 30 feet back of the street car when he saw her falling out of it, and stopped his machine just in time to keep from hitting her body. He testified there was nobody on the car step, and he said he did not see any part of her body come in contact with the car step. Lee Wyman, produced by the plaintiff, testified that he was waiting in front of the bakery at Westminster Way, to go down town; that he saw this street car approaching, and saw the plaintiff falling out. He testified:

"Q. What was her position when she left the car platform? A. Both arms and both legs extended in this position (indicating). Q. And face outward? A. Facing east."

He said she fell forward, but that he did not know what part of her body hit the street first. He said there was no one on the car step—"no one standing on there, hanging on there."

Upon certain points there is no conflict in the testimony. According to all of the testimony, the car was crowded. The aisle was crowded, and also the vestibule or rear platform, and the doors were open from Sarah street to where the plaintiff fell out. No witness other than the plaintiff testified to an unusual jerk of the car. While the testimony of several witnesses for the plaintiff was that there was no one standing on the steps, the defendant introduced testimony to show that there were persons standing on the steps. It was a rule of defendant, and conductors were instructed, that the doors were to be closed while the car was in motion, if people were not standing on the steps. Defendant introduced the conductor of the car. He testified that there were two or three men on the steps, and that he could not for that reason close the door; that he noticed a young lady, after leaving Sarah street, who came out of the car proper, and told him to let her off at the next stop; that he "hesitated a few moments," and turned and pressed the buzzer; that when he turned back she was going out of the door; that he reached for her, but she was so far out he could not grab her.

Miss Altrof, a passenger, a witness for defendant, testified that she boarded the car at Sarah street; that there were persons on the steps; that she had to push her way in; that she pushed her way to the fare box and paid her fare; that she was looking up the aisle, watching for an opportunity to move up into the aisle; that she saw a young lady about the middle of the car rudely pushing her way out; that she (witness) had to lean over the fare box to let the young lady push by her; that this young lady pushed her way through the crowd on the platform. The witness said after the young lady pushed by her:

"I turned around to look at her, and the next thing I saw she was just stepping out into space."

R. W. Kirkwood, a passenger produced by defendant, testified that he was "on the back platform, right in front of the conductor, right alongside the door"; that the step was down, and he was standing just against the railing and the door; that he saw the young lady come out of the aisle, like she was in a 'hurry; that he did not pay any attention to her, when she came back of him; that the first thing he "knowed" he heard somebody give a comment behind him, and he turned and looked and "seen" the girl out in the street, rolling in the street. On his cross-examination this witness reiterated the statement that he was on the platform. He also said he did not see the conductor grab for the girl, and that he did not see Miss Altrof on the platform. Later this witness said that he was down on the step, and that there was another man on the step, "down alongside of me." He said this other man was the only man he saw on the step. This witness further testified on cross-examination:

"Q. And with the people all around you, and behind you, and holding onto this rail, you couldn't tell whether or not the car gave a jerk? A. Yes sir. Q. Sir? A. No; it never gave any jerk as I know of; it never jerked. I know it didn't jerk me. I was holding on account of the crowd, so I wouldn't be pushed off. A. There was such a big crowd there they might push you off? A. Yes, sir. Q. What would push you off, the crowd or the movement of the car? A. The crowd, I guess; the...

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