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

• Decision Date: 30 June 1908
• Citation: 133 Mo. App. 68,112 S.W. 714
• Parties: MOELLER v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

112 S.W. 714

133 Mo. App. 68

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

St. Louis Court of Appeals. Missouri.

June 30, 1908.

1. CARRIERS—INJURIES TO PASSENGERS—DEFECTIVE PLATFORMS — NEGLIGENCE — QUESTION FOR JURY.

Whether a carrier failing to maintain a guard rail at the end of a platform used to receive and discharge passengers was negligent, authorizing a recovery for injuries to a passenger falling from the platform while alighting from a car, held, under the facts, for the jury.

2. SAME—CONTRIBUTORY NEGLIGENCE.

A passenger may rely on the promise of the conductor that he will let the passenger off at a designated place where passengers are regularly received and discharged, and he need not give notice by ringing the bell of his wish to leave the car at such place.

3. SAME—ACTION—PETITION.

A petition in an action for injuries to a passenger while alighting from a moving car which alleges that the conductor promised to let him off at a designated point, that the speed of the car was checked as it approached the point inducing the passenger to believe that the conductor was about to stop the car, and that the passenger was in the act of alighting when the car was started at an accelerated speed, throwing him from the car, charges every negligent act on the part of the conductor as to stopping and starting the car at that point.

4. SAME—NEGLIGENCE—OBLIGATION OF CONDUCTOR.

A conductor accepting the notice of a passenger to stop the car at a designated point for him must without further notice signal the motorman to stop the car at the designated point, and must see that the passenger is afforded an opportunity to alight in safety.

5. NEGLIGENCE — INFANTS — CONTRIBUTORY NEGLIGENCE.

A minor is only required to exercise that degree of care which is expected of one of his age, experience, and capacity.

6. SAME—QUESTION FOR JURY.

Whether a minor is guilty of contributory negligence in failing to exercise the degree of care which is expected of one of his age and capacity is for the jury, unless the only conclusion that can reasonably be drawn from the evidence is that he was guilty of contributory negligence.

7. CARRIERS—INJURIES TO PASSENGERS — MINORS—CONTRIBUTORY NEGLIGENCE.

Whether a boy 12 years old was guilty of contributory negligence while alighting from a moving car held, under the facts, for the jury.

Appeal from Circuit Court, City of St. Louis; Jas. E. Withrow, Judge.

Action by Andrew George William Moeller, by his next friend, against the United Railways Company of St. Louis. From a judgment of nonsuit, plaintiff appeals. Reversed and remanded.

Wm. R. Gentry, for appellant. Boyle & Priest, Geo. T. Priest, and T. E. Francis, for respondent.

BLAND, P. J.

Defendant maintains and operates a double-track electric railroad, running from the western limits of the city of St. Louis west to Creve Cœur Lake, in St. Louis county. Its road crosses the Colorado steam railroad track on a wooden trestle. About three miles east of Creve Cœur Lake, west of, and running to, the trestle, is a fill or embankment about 42 feet deep. On top of this embankment, and reaching to the east end of it, are platforms about 48 feet long and 6 feet 4 inches wide, maintained for the accommodation of passengers to get on and off defendant's cars. The platform on the south side of the railroad was constructed by laying heavy timbers and filling in cinders between them. The south side of the platform is protected by a railing, and the west end by a bent or brace, running from the railing down to the timbers, but there is no railing or other guard on the east end. This platform is called in the evidence "the Colorado crossing," and is a regular place to receive and discharge passengers. Plaintiff at the time he was injured was 12 years of age, and lived with his parents on a farm near Creve Cœur Lake. On December 19, 1905, he took passage on one of defendant's cars to be carried to the Colorado crossing, on his way to a school, of which he was a pupil, one-fourth mile from the crossing. When the crossing was reached, he undertook to get off the car on to the south platform, and by the motion of the car was precipitated over the east end of the fill or embankment and injured. The action is to recover for the injury. The specific acts of negligence charged in the petition are, first, that defendant negligently failed to place a guard or rail at the east end of the platform; and, second, that it negligently started the car forward with a quick jerk as plaintiff was alighting, causing him to be thrown over the dump. The answer is a general denial and a plea of contributory negligence. At the close of plaintiff's case, he was forced by the ruling of the trial court to take a non-suit. His motion to set aside the involuntary nonsuit was denied, and he appealed to this court. Plaintiff testified that in December, 1905, and prior to the 19th of that month, he had ridden on defendant's cars from Creve Cœur Lake and got off at the Colorado crossing four or five times, and knew the east end of the platform was not guarded. He testified he had watched brakemen get on and off moving cars, and knew the position they took on the car to get off. He stated that, when he got on the car, he paid the conductor his fare, and seated himself on the back seat of the car; that, when the car was within about two miles of the Colorado crossing, he spoke to the conductor and told him to let him off at the crossing; that the conductor said, "All right, I will"; that the conductor was sitting in the second seat ahead of him when the car was near the crossing, reading a newspaper; that, when the car was within about half a block of the crossing, he (plaintiff) left his seat, went out on the black platform, and took a position on the steps with his face toward the car, holding on with both hands, the position he had seen brakemen take to alight from moving cars; that the car slowed up as it neared the platform, but was running too fast for him to get off when it reached the platform, and he "waited for it to slow up some more before getting off"; that it did slow up some, and, when it got within about three feet of the end of the platform, it was running a little faster than a walk, and he then attempted to alight; that just as his right foot touched the platform, his left being still on the step, the speed of the car was accelerated, causing him to be thrown around and to stumble against the timber at the outer edge of the platform, and to turn a somersault over the end of the embankment, falling on his stomach. He became very sick in a short time, vomited blood, and was seriously ill for several days. He has, however, entirely recovered.

1. In view of the fact that there is no evidence showing, or tending to show, that passengers got on or off defendant's cars at the Colorado crossing in the nighttime, or that the platform ever became crowded with passengers in the daytime, I do not think a court would be justified in holding that the failure of the company to maintain a guard rail at the east end of the platform to protect people from falling down the embankment was negligence per se; but, if a guard rail can be maintained at that point without interfering with cars running upon the tracks, then I think it should be left to the jury, under appropriate instructions, to find whether or not the company was negligent in failing to erect and maintain a guard rail at the east end of the platform.

2. Does plaintiff's evidence tend to prove defendant's servants in charge of the car were guilty of negligence in accelerating its speed in the circumstances testified to by plaintiff? Plaintiff did not ring the enunciator bell. In fact, there is no evidence showing that he knew the car was equipped with enunciators. On the contrary, from the fact that he verbally requested the conductor to let him off at the Colorado crossing, the inference is that he did not know the car was equipped with such appliances. The conductor did not give the motorman a bell to stop the car at the Colorado crossing. He was sitting with his back to plaintiff when the latter left the car and took his position on the rear step preparatory to alighting, and there is no evidence that the conductor actually knew plaintiff was attempting to leave the car. From these facts in evidence it is argued by defendant's counsel that it was not negligence to accelerate the speed of the car as plaintiff was getting off. This argument leaves out of view the evidence that plaintiff had orally announced to the conductor that his destination was the Colorado crossing, and that the conductor told him he would let him off there. Plaintiff had a right to rely on this promise, and was not bound to ring the bell to give notice of his wish to leave the car at the crossing. The notice had been given and accepted by the conductor as sufficient before the crossing was reached, and it was his duty, without further notice, to give the motorman a bell to stop the car. Not only was it his duty to do this, but also to pay attention to plaintiff while he was alighting from the car. Had he attended to these duties, plaintiff would not have been injured. Instead of attending to his duties, the conductor allowed himself to become absorbed in a newspaper, and seems to have forgotten he had a boy passenger whom he had promised to stop the car at the crossing; and, as the car and its movements were under the control of the conductor, I think the company should be charged with negligence in accelerating the speed of the car as plaintiff was alighting from it. But it is contended that no such negligence as this is charged in the petition. The petition charges that, after plaintiff entered the car and paid the conductor his fare, he told the conductor of his intention to leave the car at the platform, "and asked the conductor to have the car stopped to allow him to alight at that point; that, as the car approached said...