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

• Decision Date: 01 April 1915
• Docket Number: No. 17246.,17246.
• Citation: 176 S.W. 227
• Parties: NORTHAM v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

176 S.W. 227

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

No. 17246.

Supreme Court of Missouri, Division No. 1.

April 1, 1915.

Rehearing Denied April 12, 1915.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by William H. Northam against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The suit was commenced on April 10, 1911, by plaintiff, as an alleged passenger, to recover damages on account of injuries sustained February 23, 1911. The petition reads as follows:

"Plaintiff states that on or about the 23d day of February, 1911, the defendant, by its agents and servants in charge of its electric street railway car, of the Hodiamont line of said defendant's street railway system, then and there being operated by its agents and servants, stopped its said electric car going south or southeastwardly, to receive the plaintiff as a passenger upon its said electric car at the usual stopping place to receive and discharge passengers, at or near the south side of Maple avenue, a public thoroughfare in said city of St. Louis, where the defendant's tracks cross said Maple avenue in the city of St. Louis, state of Missouri; yet the defendant, by its servants so in charge of said car, unmindful of their undertaking and duty in the premises, did fail to use care in receiving the plaintiff on its said electric car, and there allow him reasonable time to reach a place of safety, but, on the contrary, while said car was stopped at or near the south side of Maple avenue, as aforesaid, and while plaintiff was an the step of the rear platform of said car, as a passenger, and before he was able to take a place of safety on and in said electric car, and before he was allowed a reasonable time to do so, said defendant's servants in charge of said car negligently and carelessly caused and permitted said car to be started forward with great force and with such a jerk and shock that the plaintiff was jerked from said step of the rear platform of said car with such force and dragged and injured."

The damages are laid at $25,000.

The answer contains a general denial, and a plea of contributory negligence. The reply is a denial of the new matter pleaded in answer. On October 24, 1911, the jury returned a verdict in favor of plaintiff for $8,400. A motion for new trial was duly filed, overruled, and the cause appealed to this court.

The reversal or affirmance of the case hinges upon what occurred at the time plaintiff alleges he attempted to enter defendant's car, and upon the instructions given and refused upon this branch of the cause.

Plaintiff intended to take the Hodiamont car to Broadway, and then go north on Broadway to the "Katy" depot. He testified in respect to what occurred as follows:

"Q. What did the car do there? A. The car stopped. Q. Then what did you do? A. I started to get on the car. Q. Just explain it. A. I stepped on the first step and was making the second step, and my hand was on that rod that comes down between the pay-as-you-enter and where they get off and where they get on. The car started with a lunge; a severe lunge, and threw me around towards the pay-as-you-enter doorway, where you come out. Before I could gather myself it made another jerk, and that threw me clear off, and the car was running—moving at a pretty good speed. I struck on my back or side. I don't know which."

He sustained serious injuries on account of his fall; but, as no point is made in respect to the amount of damages recovered we will eliminate this branch of the case from further consideration. Plaintiff testified upon cross-examination that he had been waiting eight or ten minutes for the car, and that Pence came over while he was there. He further testified:

"Q. Mr. Pence stayed at the same house you did? A. Yes, sir. Q. Was the car moving when he got on? A. Yes, sir; the car was moving when Mr. Pence got on. Q. How long after that was it before you got on? A. I was standing on the right side of the track. The car was coming east. We was standing both—I was standing east and he was standing north of me, and when the car came up, why, he was on the north side of me, and I was on the southeast of him. He stepped on the car when it was moving, and when the car stopped after it passed me I couldn't get on. I was on the step, and there was another passenger on the back end of the car. He couldn't get off. I stepped on the step. Before I got on, the car passed me. Of course, I had to follow the car up. By that time the gentleman standing south of me—east of me—stepped in between me and got on the car between me and Mr. Pence. Q. You are the only ones that got on the car that morning? A. I don't think there was anybody else got on the car. I don't think there was but four of us waiting for the car. I was the last man that got on the car or started to get on the car. Q. You came up behind this other man and got on back of Mr. Pence? A. Yes, sir; stepped in. The car was coming down the track. If I was facing the other way, I could show you. The car came down. I stepped on the car. I was standing like that. The car run by me a little piece. This gentleman was standing there. That gave him a chance to step on he step before I could get to it."

Fred W. Pence found plaintiff waiting, near 7 o'clock p. m., at southwest corner of De Hodiamont and Maple streets, at the stopping place where passengers are taken on. Pence testified:

"Q. What, if anything, did Mr. Northam have hold of when he got on the car? A. It looked to me that he had time enough to grab one iron, but before he got on the car it had started up before he could grab the back end of the platform. Q. What, if anything, did you see him have hold of? A. One railing with his right hand. Q. At the time you saw him have hold of the railing with his right hand, was the car moving or standing still? A. To a standstill."

He further testified:

"Q. How do you know that Mr. Northam boarded that car after it stopped? A. As I told you previously, I seen him step on the car when it was to a standstill."

Pence testified that the car started in response to a signal.

A. D. Goldsmith, witness for defendant, testified in chief that plaintiff—

"wasn't on the car when it started. * * * Q. I will ask you whether there was any man standing there waiting for the car after you had gotten on? A. No, sir; one lady."

On plaintiff's cross-examination, witness Goldsmith testified:

"Q. You had not noticed him get on there at all? A. Yes; I know he didn't get on. Q. You didn't look, you didn't see him, did you? A. He didn't get on the car until after it started. * * * Q. Then you didn't see, and you can't say you did see him when he put his loot on there and took hold of the rail, took hold of the car to get on? A. Let me tell you, I state positively, without fear of contradiction to this court, that that man didn't get on that car until after it started. I was the last man. I stepped aside to let the lady get on. She refused to get on. The car started. I got on. I state that without any contradiction or fear. Q. You say yourself, and you have repeated, that you didn't see him at all until he was dragged down the way? A. That is what I said. I didn't see him. He wasn't there to be seen. Q. He wasn't there to be seen? A. Until he run and caught the car. Q. You swear here that this man was not there to be seen? A. He wasn't at that station when the car started. If he did he run for it."

Frank Haley, conductor, testified in regard to plaintiff, as follows:

"Q. Was he standing there waiting for the car when you came up to that place? A. No, sir. Q. Did all the men who were standing there get on the car? A. Yes, sir. Q. Did any one fall from the platform when the car started? A. No, sir. Q. Or after it started? A. No, sir. Q. Did you give the signal for the car to start? A. Yes, sir,"

Charles Buis, a passenger, in behalf of defendant testified:

"Q. Will you state what happened at Hodiamont and Maple avenue on leaving there? A. Well, when they left there at first there was three men standing on the sidewalk and one lady. The three men boarded the car and the lady didn't. As they started, I turned around and saw this gentleman dragging. That is all I saw. Q. You didn't see Mr. Northam until after the car had started? A. No, sir."

This witness further testified:

"Q. You didn't see him at all with these men getting on? A. Did not. Q. You had your eyes in another direction wren they were getting on? A. Didn't see him until I turned around. Q. You saw them standing there? A. Yes, sir. Q. And the next you saw was after the car had gone on and you saw him dragging? A. Yes, sir."

The regular conductor gave the signal to start the car.

We have set out substantially all the evidence introduced at the trial in respect to what occurred at the time plaintiff attempted to board defendant's car. We will hereafter consider the foregoing evidence, in connection with certain instructions given and refused.

Boyle & Priest, T. M. Pierce, and Chauncey H. Clarke, all of St. Louis, for appellant. S. P. Bond, of St. Louis, for respondent.

BAILEY, C. (after stating the facts as above).

Appellant in its brief assigns two errors: One relates to instruction 5, given at the instance of plaintiff; and the other relates to instruction 2, asked by defendant, and refused by the court.

I. The petition charges specific negligence as follows:

"While said car was stopped at or near the south side of Maple avenue, as aforesaid, and while plaintiff was on the step of the rear platform of said car, as a passenger, and before he was able to take a place of safety on and in said electric car, and before he was allowed a reasonable time to do so, said defendant's servants in charge of said car negligently and carelessly caused and permitted said car to be started forward with great force and with such a jerk and shock that the plaintiff was jerked...