Moeller v. United Rys. Co.

• Decision Date: 20 May 1912
• Citation: 147 S.W. 1009
• Parties: MOELLER v. UNITED RYS. CO.
• Court: Missouri Supreme Court

147 S.W. 1009

MOELLER v. UNITED RYS. CO.

Supreme Court of Missouri.

May 20, 1912.

1. CARRIERS (§ 320)—ACTIONS FOR INJURIES TO PASSENGER—EVIDENCE.

Where a railroad crossed another road on a high trestle approached by an embankment, on one side of which was a platform used by passengers in boarding and alighting from cars, and the only evidence on the question of the company's negligence in failing to have a guard railing on the end of the platform for the protection of passengers consisted of a description of the trestle, embankment, and platform, with photographs thereof, the evidence was insufficient to require the submission of this question to the jury.

2. CARRIERS (§ 303)—INJURIES TO PASSENGERS—LIABILITY.

The motorman of an electric car was not negligent in increasing the speed of the car as a passenger was alighting, when he had not been given a signal by any one warning him that a stop was desired; but the company was nevertheless liable for an accident, since the conductor was negligent in failing to see that a passenger was about to alight, and in failing to give such signal, especially where the passenger had told the conductor that he wanted to alight at that point, and he was the only passenger on the car.

3. CARRIERS (§ 347)—INJURIES TO PASSENGERS —CONTRIBUTORY NEGLIGENCE—QUESTIONS FOR JURY.

Where a country boy, 12 years old, attempted to alight from an electric car moving a little faster than a man ordinarily walks, about three feet from the end of a platform on which he was alighting, and was carried by the momentum over the end of the platform and injured, the question of his contributory negligence was for the jury, since the danger was not so obvious to one of his years and experience as to enable the court to say, as a matter of law, that he must have seen and appreciated the danger.

4. NEGLIGENCE (§ 85)—CONTRIBUTORY NEGLIGENCE—DEGREE OF CARE REQUIRED.

In determining whether an act of a 12 year old boy constitutes negligence, the standard by which it is to be measured is not the degree of care to be reasonably expected of an ordinarily prudent man, but the care to be reasonably expected of an ordinarily prudent boy of his age.

5. TRIAL (§ 142)—TAKING CASE FROM JURY.

The court is justified in taking a case from the jury only where there can be but one reasonable conclusion drawn from the evidence.

6. NEGLIGENCE (§ 85)—CONTRIBUTORY NEGLIGENCE—CHILDREN.

The court cannot specify the age at which a child shall be held liable for his acts the same as a person of maturity, since the peculiar circumstances of the particular case, his knowledge and experience with respect to those circumstances, and his capacity to appreciate the danger, as well as his age, must be considered.

Woodson and Graves, JJ., dissenting.

In Banc. Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by Andrew G. W. Moeller against the United Railways Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

William R. Gentry, for appellant. Geo. T. Priest and T. E. Francis (E. T. Miller and Boyle & Priest, of counsel), for respondent.

VALLIANT, J.

Plaintiff, a boy 12 years old, in attempting to alight from one of defendant's cars fell and was injured. He sues for damages, alleging that the accident was the result of defendant's negligence. Defendant owns and operates a double-track electric railway extending from the city out through the county of St. Louis to Creve Cœur Lake. About three miles east of Creve Cœur Lake, defendant's railway crosses a steam railroad, which is called in the evidence the Colorado Road. The defendant's road crosses the Colorado on a high trestle. Coming east from Creve Cœur Lake, this trestle is approached on an embankment, against which the west end of the trestle abuts. On the south side of the embankment is a cinder platform, about 45 feet long, for the use of passengers boarding or alighting from defendant's cars. This platform runs up to the east end of the embankment, and is level with it. On the south side of the platform, there is a railing. The east end of the platform is six feet four inches wide. There is no railing at that end. Plaintiff lives near Creve Cœur Lake, and had for some days ridden in defendant's cars from his home to that crossing, attending school near the crossing, and had alighted on that platform. He was familiar with the situation. This is the account he gives of the accident:

He was on his way to school. When he boarded the car, he told the conductor he wanted to get off at the Colorado crossing, and the conductor told him that he would let him off there. He took the rear seat in the car; the conductor sat in the second seat forward from the one occupied by plaintiff, and was engaged in reading a newspaper. As the car approached the crossing, the plaintiff went out on the rear platform with the purpose of alighting. He gave no notice then to the conductor, but expected the conductor would stop the car as he had said he would. The conductor was apparently absorbed in the newspaper, and paid no attention to the plaintiff. When the car was within half a block of the crossing, plaintiff stepped down on the step with both feet, holding onto the car, and not venturing to alight then, because the car was going too fast. When it had got within 20 feet of the east end of the cinder platform, it was still going too fast; so he waited until it got within 3 feet of that end, and then attempted to alight. He stepped down with his right foot on the ground, his left still on the car step, and just then, he says, the speed of the car was increased, and it carried him forward over the brink, and he rolled down the embankment to the surface below, a distance of 40 feet or more. He testified that at the instant he stepped from the car with his right foot to the ground the car was moving faster than a walk, but not as fast as a run. After saying the car was going too fast for him to attempt to get off at the west end of the cinder platform, he was asked by his counsel: "How was it moving when you started to get off? A. A little faster than a run. Q. What kind of a run? A. A little slow run. By the Court: How fast—do you know how fast a person ordinarily walks? A. Yes, sir. Q. Was it as fast as that, or faster? A. A little faster than a walk."

The acts of negligence alleged in the petition are, first, failure to have a sufficient guard on the south side of the cinder platform and having none at all on the east end; second, increasing the speed of the car while the plaintiff was in the act of alighting; and, third, failing to stop the car for plaintiff to alight. The answer was a general denial and a plea of...