Parker v. St. Louis Transit Company
| Decision Date | 29 November 1904 |
| Parties | PARKER, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.
AFFIRMED.
Judgment affirmed.
Boyle Priest & Lehmann and George W. Easley for appellant.
The court erred in giving the second instruction on behalf of the plaintiff. There was nothing shown in evidence to charge the defendant with any notice of the position of the mule and coal wagon, and there was nothing apparent that the plaintiff would be thrown beneath the mule and wagon. Therefore, the defendant is not to be charged with the effects of the injury from the mule. When the evidence leads to an inference quite as strong that the plaintiff's injury was caused in one of three ways, one of which would create liability on the part of the defendant, and the other would acquit it from liability, and the jury adopts the one that imposes the liability, the plaintiff has not sustained the burden of proof, and the verdict should be set aside. Nellis on St Rys., p. 303; Laidlow v. Sage, 157 N.Y. 73, 52 N.E. 679; Epperson v. Postal Tel. Co., 155 Mo. 382, 50 S.W. 795, 55 S.W. 1050; Smart v. Kansas City, 91 Mo.App. 586; Brien v. Cooperage Co., 50 Mo.App. 202; Fuchs v. St. Louis, 133 Mo. 196, 31 S.W. 115, 34 S.W. 508; Smith v. Bank, 99 Mass. 605; Rupert v. Railroad, 154 N.Y. 90, 3 Am. Neg. 711.
Selden P. Spencer and Hibbard C. Whitehill for respondent.
The declaration of plaintiff's cause of action was prefaced by introductory allegation of the relationship of common carrier and passenger existing between the parties on the Jefferson avenue line in the city of St. Louis, with purpose on her part of transferring at Olive street to another line of defendant's system and, continuing, charged:
"That as the car approached said Olive street she signalled the servants and employees of the defendant corporation in charge of said car to stop said car at Olive street; whereupon, in response to her signal, said car came to a stop at the northeast corner of Olive street and Jefferson avenue; whereupon she attempted to alight from said car, but before she had time to leave the same, the defendant, by its servants and employees in charge of said car, negligently and without warning to the plaintiff, started said car with a sudden jerk, whereby plaintiff, without fault or negligence on her part, was thrown violently to the paved street and under a mule hitched to a wagon standing near, thereby causing severe injury to her shoulder, arm and other parts of her body."
The defense made was a general denial united with affirmative plea of contributory negligence on part of plaintiff, in leaving her seat and carelessly starting to alight from the car while it was in motion. A jury trial terminated in verdict for the plaintiff in a substantial sum.
The evidence disclosed that plaintiff, a young woman then studying stenography, with a male and female companion, boarded a north-bound Jefferson avenue summer car at Scott avenue, the gentleman of the party paying the three fares and obtaining transfer tickets for the Olive street division. As the car drew near Olive street, in response to the gentleman's signal, the car stopped momentarily at the usual stopping place and plaintiff arose, with typewriter instructor and other like books, to leave the car, but before she had descended therefrom, it moved suddenly forward and continued some distance northward before finally stopping, and the sudden forward movement of the car precipitated plaintiff to the ground, landing her between the feet of a mule hitched to a coal wagon, which animal became unmanageable, and the wagon wheels passed over her several times producing injuries, the extent and nature of which were the subject of expert testimony by medical witnesses tendered by both parties.
1. The first assignment of error by appellant is levelled at plaintiff's instruction permitting plaintiff's recovery for her injury by the mule and wagon, as the evidence did not show defendant had notice of the position of the vehicle and animal, and it was not apparent that plaintiff would be thrown beneath them. If defendant was guilty of negligent conduct in the respect averred, such negligence was the proximate and efficient cause of plaintiff's injuries, without which such hurts would not have ensued, and for which defendant, therefore was responsible; the defendant as perpetrator of the original wrongful act was answerable for all the...
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