Oesch v. St. Louis Public Service Co.
| Decision Date | 02 May 1933 |
| Citation | 59 S.W.2d 758,228 Mo.App. 1055 |
| Parties | LUCY OESCH, RESPONDENT, v. ST. LOUIS PUBLIC SERVICE COMPANY, A CORPORATION, APPELLANT |
| Court | Missouri Court of Appeals |
Motion for rehearing denied May 16, 1933.
Certiorari denied by Supreme Court June 10, 1933.
Appeal from the Circuit Court of the City of St. Louis.--Hon. Fred J. Hoffmeister, Judge.
Reversed and remanded.
Brownrigg & Muldoon for respondent.
(1) The demurrer to the evidence was properly overruled. Grubb v K. C. Rys., 230 S.W. 675; Kuhlen v. Boston & N. St Ry., 193 Mass. 341; Kennedy v. P. R. R., 32 Penn. Superior Ct. 623-627; Lehr v. Railroad, 118 N.Y. 556; Maryland D. & C. Co. to the use, etc., v Hines, 269 F. Rep. 781; Dixon v. Great Falls R. R. Co., 38 App. D. C. 591. (2) Defendant's failure to furnish men to control and direct the crowd was a direct cause of plaintiff's injuries. See cases, point 1, supra. (3) Appellant's instruction does require the jury to find that the negligence instructed on was the direct cause of plaintiff's injuries and is in proper form. Montgomery v. Ry., 181 Mo. l. c. 513; Mulderig v. Railroads, 116 Mo.App. l. c. 672. (4) A case was made under the humanitarian doctrine. Grubb v. K. C. Rys., 230 S.W. l. c. 679. (5) Plaintiff's instruction No. 2 was in proper form, since there was no evidence of any other specific negligence on the part of the conductor except that which was pleaded or as to which the jury was instructed. The addition of the words "or otherwise" could not have misled or confused the jury and did not constitute prejudicial or reversible error. Morgan v. Railroad, 159 Mo. 262; Lemon v. Lloyd, 46 Mo.App. l. c. 456; Anderson v. Kinchloe, 30 Mo. l. c. 524; Riley v. City of Independence, 258 Mo. 671; Morris v. Union Depot B. & T. Co., 8 S.W.2d 11; Garvey v. Ladd, 266 S.W. 727; Shinn v. Railroad, 248 Mo. 173, l. c. 182; Peterson v. Transit Co., 199 Mo. l. c. 344 et seq.; Perry v. Van Matre, 176 Mo.App. 100, l. c. 107; Baldwin v. Monaghan, 279 S.W. 783; Haines v. Neece, 116 Mo.App. 499, l. c. 511, 512. (6) Error to be reversible must materially affect the merits. Moore v. Lindell Ry. Co., 176 Mo. 528, l. c. 547; Peterson v. Transit Co., 199 Mo. l. c. 344; Eckle v. Ryland, 256 Mo. 424; Sellinger v. Cramer, 208 S.W. 871, l. c. 873; Briscoe v. C. & A. Railroad, 208 S.W. 885. (7) Appellant's instruction No. 5 on the measure of damages was proper. Leimbach v. U. Rys. Co., 206 Mo.App. 179, and cases cited.
T. E. Francis, B. G. Carpenter and Allen, Moser & Marsalek for appellant.
(1) That while plaintiff and other intending passengers were undertaking to board the car, and while plaintiff was ascending the steps, she was crowded or pushed by someone from behind, causing her to fall, is wholly insufficient to establish any negligence or breach of duty on the part of the defendant carrier. Spagnol v. Pennsylvania Ry. Co., 279 Pa. 205, 123 A. 781; Martin v. Boston Elevated Ry. Co. (Mass.), 160 N.E. 300; MacGilvray v. Boston Elevated Ry. Co., 229 Mass. 55, 118 N.E. 166, 4 A. L. R. 283; Sack v. Davis, 245 Mass. 114, 139 N.E. 819; Lehberger v. Public Service Ry. Co., 79 N.J. L. 134, 74 A. 272; Wood v. Philadelphia Rapid Transit Co., 260 Pa. 481, L.R.A., 1918F, 817, 104 A. 69. (2) A carrier is not liable to a passenger injured while attempting to get on its car, by the crowding or pushing of other persons in an effort to board the same, where there is no boisterous or disorderly crowd assembled, of such size and turbulent character and under such circumstances as to reasonably apprise the carrier of danger to be apprehended therefrom. Martin v. Boston Elevated Ry. Co. (Mass.), 160 N.E. 300; Spagnol v. Railroad Co., 279 Pa. 205, 123 A. 781, 22 A. L. R. 1313, l. c. 1315; MacGilvray v. Boston El. Ry. Co., 229 Mass. 65, 4 A. L. R. 283, l. c. 285; Duella v. Boston El. Ry. Co. (Mass.), 146 N.E. 237; Sack v. Davis, 245 Mass. 114, 139 N.E. 819; Wood v. Phil. R. T. Co., 260 Pa. 481, 104 A. 69. (3) Plaintiff, being a member of whatever crowd was assembled on this platform, and having hurried to get upon the car as much as did the others, with full knowledge of the facts, assumed whatever risk of injury there was of being pushed or jostled by others, as an incident to such mode of taking passage on the car. Wood v. Phil. Rapid Transit Co. (Pa.), 260 Pa. 481, 104 A. 69; Sack v. Davis, 245 Mass. 114; Elhriger v. Railroad, 153 Pa. 213; Ritchie v. Boston El. Ry. Co., 238 Mass. 473. (4) No case was made under the humanitarian rule. State ex rel. v. Trimble, 300 Mo. 92, 106, 109; Burton v. Joyce (Mo. App.), 22 S.W.2d 890, 891; Alexander v. Railway Co., 327 Mo. 1012, 1022. (5) It is reversible error to submit grounds of negligence not supported by the evidence. Behan v. Transit Co., 186 Mo. 430; Hearon v. Lumber Co. (Mo. App.), 224 S.W. 67; Sparkman v. Railway Co., 191 Mo.App. 463; State ex rel. Goessling v. Daues, 314 Mo. 282; Heinzle v. Ry. Co., 182 Mo. 528. (6) The instruction is prejudicially erroneous for the reason that it does not require the jury to find that the defendant by providing men could have so controlled the so-called crowd as to have prevented someone from pushing after plaintiff left the platform and while she was ascending the steps, and thus have avoided her injury. It does not require the jury to find that the failure to furnish such men was the proximate cause of plaintiff's injury. Lackey v. United Rys. Co., 288 Mo. 120, l. c. 146; Howard & Brown Realty Co. v. Berman, 212 Mo.App. 401; St. L. & H. R. Co. v. Walsh Fire Clay Products Co. (Mo. App.), 16 S.W.2d 616. (7) There can be no recovery under the humanitarian rule unless the evidence shows that after the peril arose and became imminent defendant or his agents and servants had the opportunity with the means at hand then and there to avoid the injury by the exercise of due care. State ex Rel. Vulgamott v. Trimble, 300 Mo. 92, l. c. 106, 109; Burton v. Joyce, 22 S.W.2d 890, 891; State ex rel. Fleming v. Bland et al., 322 Mo. 565; Alexander v. Railway Co., 327 Mo. 1012, l. c. 1022; Lackey v. United Railways Co., 288 Mo. 120, 143; Banks v. Morris, 302 Mo. 254, 266, 267; Bibb v. Grady, 231 S.W. 1020, l. c. 1022; Fleming v. Railroad, 263 Mo. 180; Rigg v. K. C. Rys. Co. (Mo. App.), 220 S.W. 697; Day v. United Rys. Co., 140 Mo.App. 461; Winter v. Van Blarcom, 258 Mo. 418; Griffin v. Transfer Ry. Co. (Mo.), 193 S.W. 807. (8) No duty arises under the humanitarian doctrine unless and until a situation of peril comes into existence. When the peril arises, the doctrine seizes upon the situation as it then exists. No antecedent negligence of the defendant may be considered in determining his liability under the humanitarian rule. Alexander v. Railway Co., 327 Mo. 1021, 1022; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, l. c. 106, 109; State ex rel. Fleming v. Bland, 322 Mo. 565. Nor may recovery rest upon speculation and conjecture. Burton v. Joyce, 22 S.W.2d 890, 891. (9) The instruction, in predicating a recovery, under the humanitarian rule, upon the theory that defendant's agents and servants in charge of its car knew, or by the exercise of ordinary care could have known, that plaintiff was in a position of danger "in time by warning and remonstrance or otherwise to have checked, controlled or quieted said crowd," and thereby have prevented plaintiff's injury, is broader than the evidence, and gave the jury a roving commission to find for plaintiff upon any theory that they might evolve out of their own minds, without regard to the evidence. Owens v. McCleary, 313 Mo. 213, l. c. 224; Allen v. Transit Co., 183 Mo. 411, 432; Mulderig v. Railroads, 116 Mo.App. 655, l. c. 667; Schide v. Gottschick (Mo.), 43 S.W.2d 777, 779; Burgher v. Niedorp (Mo. App.), 50 S.W. 174.
Plaintiff obtained judgment against defendant in her action for damages for personal injuries alleged to have been sustained by being struck, pushed, and knocked down while in the act of entering one of defendant's street cars, by a crowd of people who, like she, were attempting to board one of defendant's cars from a station platform of the defendant company. Defendant appeals.
Plaintiff's petition alleges, and the testimony adduced on her behalf tends to prove, that the defendant owned and maintained upon its property adjacent to the northbound tracks of its Kirkwood-Ferguson car line, immediately north of Easton Avenue in the city of St. Louis, a waiting room and a platform for use of people intending to become passengers on its said northbound street cars; that said platform was a brick walk six feet two inches wide extending along the west side of the defendant's said waiting room; that the overhang of the street cars on this line was approximately two feet, which left a space of four feet two inches between the wall of the waiting room and any car of the defendant which stopped at the platform to take on or discharge passengers; that large numbers of prospective passengers frequently crowded upon this platform and particularly so on Saturday mornings. On Saturday morning, November 3, 1928, plaintiff took her place upon said platform to await the arrival of one of defendant's Kirkwood-Ferguson street cars. The car which finally came up and stopped at the platform was almost an hour late so that not only had the platform become crowded with people, but people stood in the waiting room.
According to plaintiff's own testimony, on previous Saturday mornings, about the same time, she had observed that crowds collected, and that when a car arrived and stopped at the platform the crowd "made a rush for the door;" that on the occasion in question, when the car came to a standstill at the platform and the conductor opened the rear door thereof, she was...
To continue reading
Request your trial