Nissen v. Missouri R.R. Co.

• Decision Date: 08 December 1885
• Citation: 19 Mo.App. 662
• Parties: RUDOLPH NISSEN, Respondent, v. MISSOURI RAILROAD COMPANY, Appellant.
• Court: Missouri Court of Appeals

19 Mo.App. 662

RUDOLPH NISSEN, Respondent,

v.MISSOURI RAILROAD COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 8, 1885.

APPEAL from the St. Louis Circuit Court, W. H. HORNER, Judge.

Affirmed.

DAVIS & DAVIS, for the appellant: The effect and intention of the act concerning street railroads, approved January 16, 1860, is that when the injury to the passenger is occasioned by his getting on or off the car at the forward platform, it shall be presumed as a matter of law that the negligence of the passenger himself contributed to produce the injury. McKeon v. Citizens' R. Co., 42 Mo. 79; approved in Burns v. Bellef ontaine R. Co., 50 Mo. 139; following Higgins' Guardian v. Hannibal & St. Jo. R. R. Co., 36 Mo. 418, 436.

A. R. TAYLOR, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

The plaintiff's wife was a passenger on a crowded street car of the defendant, when it stopped in its eastward trip on Market, between Fifth and Sixth streets, in the city of St. Louis. The “Veiled Prophet's” procession was about to pass along on Fifth street, and there was a general rush of passengers to get out at either end of the car. Mrs. Nissen first went to the rear door, but finding it jammed with people, retreated to the front door and passed out on the platform intending to leave by that way. Here the handle of the brake, being suddenly released, flew around and struck her in the back, inflicting injuries. In this action the plaintiff recovered damages on the ground that the mishap was due to negligence in the driver of the car.

The jury, as it clearly appears from the instructions given, found that the injuries were directly caused by the driver's negligence in handling the brake. The defendant insists, however, that the judgment ought to be reversed because proper weight was not given to its defence presented in section nine of an act of the general assembly approved January 16, 1860, relating to certain railroad companies, including the defendant, which reads as follows: “Section nine. Said railroad companies shall not be liable for injuries to persons occasioned by their getting on or off the cars at the front or forward end of the car.”

The defence might be available if it could be made to appear that Mrs. Nissen's injuries were “occasioned” by her getting off the car at the front end. But nothing in the testimony or in the verdict shows that such was the fact. She may have been intending to get off at the front end, but the terms...