Padgitt v. Moll and Citizens Railway Company

• Decision Date: 18 December 1900
• Citation: 60 S.W. 121,159 Mo. 143
• Parties: PADGITT, by Next Friend, Appellant, v. MOLL and CITIZENS RAILWAY COMPANY
• Court: Missouri Supreme Court

60 S.W. 121

159 Mo. 143

PADGITT, by Next Friend, Appellant, v. MOLL and CITIZENS RAILWAY COMPANY

Supreme Court of Missouri

December 18, 1900

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

A. R Taylor for appellant.

(1) The plaintiff being upon the car with the knowledge and assent of defendant's servants in charge of the car, and, for that matter, according to the usage and custom of defendant's business, he was entitled to the same care as if he was a passenger for hire. Sherman v. Railroad, 72 Mo. 65; Whitehead v. Railroad, 99 Mo. 271; Buck v Railroad, 108 Mo. 185. (2) The court erred in allowing the stenographer, against the objection of the plaintiff, to read from his notes evidence to the jury after the case had been submitted to the jury and after the jury had been considering the verdict many hours, the stenographer not having been sworn. (3) The court erred in allowing the defendant to read the affidavit as to the alleged evidence of William Flippen.

Smith P. Galt for respondent.

(1) (a) There was no allegation in the petition that the plaintiff was a passenger, and the case was not brought on that theory. (b) There was a positive admission at the trial that the plaintiff had no permission "to sell papers on this line." (c) The instruction referred to "the knowledge and permission of defendant's gripman and conductor in charge of its cars," while the printed abstracts gave no evidence tending to show that the "conductor" knew at any time that the plaintiff was on the car. (2) A newsboy jumping on the running board of a moving grip car to attempt to sell a paper and then jumping off again, is not a passenger. Booth on Street Railways, sec. 365; Fleming v. Railroad, 1 Abbott N. C. 433; Schaefer v. Railroad, 128 Mo. 64; Sweeney v. Railroad, 10 Allen 368.

VALLIANT, J. Brace, J., concurs; Gantt, C. J., Sherwood, Robinson and Marshall, JJ., concur in first, second and third paragraphs, but are of the opinion that there is no evidence to show negligence on the part of defendant corporation. Burgess, J., absent.

OPINION

In Banc

VALLIANT J. --

Action for damages for personal injuries.

Briefly stated the petition is that plaintiff, a boy ten years old, engaged in selling newspapers, was received on one of the street cars of defendant corporation by its servants in charge thereof, who permitted him to ride on the car for the purpose of selling newspapers, as was their custom to do; that on this occasion plaintiff was on the running board of the grip car, and the defendant's servants in charge caused or suffered plaintiff's body to be struck by the tongue of a wagon, with mules attached belonging to defendant Moll, whereby plaintiff was thrown off and run over by the trailer car and his leg so injured as to render it necessary to be amputated, which was done; that the servants of the corporation defendant were negligent in so causing or suffering the plaintiff to be struck by the wagon, and that negligence directly contributed to his injuries; that defendant Moll was negligent in permitting the wagon with the mules attached to stand on the street in such close proximity to the railway track unfastened and unguarded as to imperil one riding on the street car as plaintiff was, which negligence combined with that of the servants in charge of the car as above mentioned, caused the plaintiff to be thrown off and injured as stated. The petition concluded with statements as to his damage and suffering, and prayed judgment for $ 15,000. Answers were general denials and pleas of contributory negligence, as to which plaintiff joined issue.

The testimony on the part of plaintiff tended to show that the accident occurred on Franklin avenue in the city of St. Louis, along which defendant railway company's track is laid; that defendant Moll has a grocery store on the south side of Franklin avenue, between Sixth and Seventh streets, in front of which on this occasion a delivery wagon belonging to him was standing with the rear end towards the curb and in front of the store, and the horses' heads towards the track and close to it, with barely room for the cars to pass, the horses not hitched and not attended; that the plaintiff, a newsboy ten years old, had for some time previous been in the habit of jumping on the cars of defendant corporation as they passed along there, offering his newspapers for sale and jumping off when he had gone through that car, then boarding the next car that came along, and so on, plying his vocation; that on this occasion the car stopped at the corner of Sixth and Franklin avenue to take on passengers and then started on again, and the plaintiff jumped on the front end of the grip car on the running board in front of the gripman, offered his papers to a passenger on the front seat, and then passed on towards the rear of the grip car, behind the gripman, walking on the running board, offering his papers for sale to the passengers as he came to them, his face to the north, not looking around and not seeing the wagon and horses, and while so doing and holding to the stanchion, the moving car carried him against the wagon tongue or the horses, and knocked him off the running board, and he fell under the trailer and the wheels run over and crushed his leg, and it was amputated in about two hours afterwards; that at the time of the accident the car was moving at a moderate rate, the gripman was at his post looking ahead, the conductor was on the rear platform.

At the close of the plaintiff's evidence the court gave an instruction at the request of defendant Moll, that as to him the plaintiff was not entitled to recover, and refused a similar instruction as to the defendant railroad corporation. A nonsuit with leave was taken as to Moll, and the trial progressed as to the other defendant.

On the part of the defendant the testimony tended to show that the plaintiff and other newsboys were in the habit of jumping on and off the cars, plying their trade; that the company had often remonstrated and tried to prevent it, but found it impracticable to do so, and had to submit to it; that on this occasion the gripman saw the boy when he got on the car, and saw that he passed towards the rear on the running board, but when the boy passed behind him he saw him no more, as his duty as gripman required his attention to the front; that as it was a populous part of the city, wagons, etc., passing, his custom was to go slowly along there, and he was going slowly on this occasion; that the boy slipped and fell off the running board and was not struck by the wagon at all. The gripman testified that he told the boy when he got on the car to look out for the wagons in front of Moll's; the boy testified that the gripman said nothing to him.

The cause was set for trial October 15, 1894, and when called for trial on that day defendant moved for a continuance on account of the absence of one William Flippen, and filed the affidavit of Mr. Galt, attorney for defendant, in which it was stated that he had caused a subpoena to be issued for the witness, who was a resident of the city, but had been unable up to that time to obtain service of the writ. The affidavit stated: "But affiant and the defendant believe that said William Flippen is now in said city, and by prosecuting a search therefor his attendance or testimony will be procured at the next term of said court." Then the affidavit proceeded to set forth what the witness, if present, would testify to, which was, substantially, that he was a passenger on the grip car, saw the boy jump on the front end of the running board and walk back calling his papers, and two other newsboys also jumped on; this boy passed to the rear of the gripman, and fell off when he was holding to nothing and was not struck by the wagon or mules or anything; that the gripman was looking ahead, and the car was going at half speed, that when witness saw the boy fall he hollowed to the gripman, "Stop, a boy fell off," and the gripman stopped as soon as possible. When the affidavit was filed the plaintiff admitted that if the witness were present he would testify as therein stated, and thereupon the court overruled the defendant's motion for continuance. Then the court, for its own convenience, postponed the trial until November 19, and on that day the trial was begun. The defendant offered to read in evidence from the affidavit, what it stated the witness if present would testify to. The plaintiff objected on the ground that there was no showing that the witness was not then within the jurisdiction of the court. The objection was overruled and the plaintiff excepted.

The evidence, instructions and arguments were concluded on November 20, and the jury retired to consider of their verdict, and were still in such retirement on November 21, when they sent the following note to the judge:

"Hon. Judge Fisher: The jury can not agree as to the facts in the evidence of the gripman, also the boy's. We ask that we may have a transcript of the evidence of the above-named parties.

"Yours truly,

"W. S. Bartley, Foreman.

"P. S. -- Without that I am satisfied this jury can not agree. W. S. B."

Upon receipt of this note the judge showed it to the counsel in the case, and said that he could not send a transcript of the evidence as desired, but that if the counsel would consent he would send for the jury and allow the stenographer to read to them the testimony of the witnesses referred to. The counsel for plaintiff said he would consent, but counsel for defendant refused. Afterwards on the same day the judge sent for the counsel and informed them that he had concluded to allow the stenographer to read his notes of the evidence of the witnesses referred to to...