Parks v. St. Louis Transit Co.

• Decision Date: 08 May 1906
• Citation: 96 S.W. 426,119 Mo. App. 445
• Parties: PARKS v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

96 S.W. 426

119 Mo. App. 445

PARKS v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

May 8, 1906.

1. CARRIERS — INJURY TO PASSENGER — SETTING DOWN PASSENGERS.

Where a street car stopped at a place where it was customary for it to discharge passengers it was the duty of the conductor, who saw that a passenger was alighting, to detain the car until she had alighted, irrespective of the reason for the stop.

2. SAME — ACTION — INSTRUCTIONS.

Where, in an action for injuries to a passenger owing to the starting of a street car while she was alighting, the conductor testified that he saw her alighting at a point where the usage was to let off passengers, an instruction as to the facts authorizing a recovery was not erroneous for not requiring a finding that the operatives of the car knew of plaintiff's attempt to alight.

3. SAME — SETTING DOWN PASSENGER.

Though a city ordinance required street cars to stop on a certain side of a street to receive and discharge passengers, the company being accustomed to stop elsewhere, it was liable for injuries to a passenger from the negligent starting of the car while she was alighting at that place.

Appeal from St. Louis Circuit Court; Dan'l D. Fisher, Judge.

Action by Nancy L. Parks against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This action was instituted to recover damages for a personal injury sustained by plaintiff while a passenger on one of defendant's trolley cars of the open or summer pattern, with running boards along the sides. The accident occurred at the intersection of Grand and Lucas avenues in the city of St. Louis, about 8 o'clock in the evening of June 8, 1904. Plaintiff was at that time more than 50 years old and of stout figure, weighing nearly 190 pounds. She and her husband resided in East St. Louis, Ill. A son of theirs resides on Easton avenue, in the city of St. Louis, and they had been to visit him on the evening of the accident. Not finding him at home, they started to return to their home, taking passage on a south-bound Grand Avenue car at Easton avenue. Mr. Parks paid the fare for himself and wife, and was given transfers to the east-bound car line which left Grand avenue at Lucas avenue. Double car tracks turn from Grand into Lucas at the intersection of the two streets, and the points of the switch by which cars are diverted into Lucas lie on Grand a few feet north of the north line of Lucas. Owing to this fact, when a south-bound Grand Avenue car draws near the switch, it slackens speed, or pauses, until the switch point is adjusted so that it can proceed on its way along Grand avenue, instead of being diverted on Lucas. Sometimes it is necessary to come to a full stop in order to adjust the switch, and at other times the motorman is able to adjust it while the car is moving at slow speed. This diagram will illustrate the position of the several car tracks at the point in question:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

According to the ordinances of the city and the general custom of the defendant company, passengers who wish to get off at Lucas avenue leave the car, in most instances, not when the car slows down or pauses at the switch, but on Grand avenue, where the south line of Lucas would cross it if extended. There was some testimony that occasionally cars stopped to discharge passengers in what would be the driveway of Lucas avenue if it was extended across Grand. This would be in accordance with the known fact that street cars are not always stopped at exactly the usual place for letting off and taking on passengers. Now and then they come to a stop several yards before the usual point is reached, and again not until it has been run past that far. There was evidence going to show that passengers were discharged, now and then, at or near the north line of Lucas avenue. This occurred when a south-bound car on Grand avenue stopped at the switch points, and the usage was so far recognized by the defendant company that, when a car actually stopped there to await the throwing of the switch, it was the custom not to move forward again until the conductor gave a starting signal, so that, if a passenger happened to be getting off, the car would not be started while he was in the act. The conductor of the car on which plaintiff was riding gave testimony to that effect, as did other witnesses. The evidence leaves a great uncertainty as to whether the particular car with which we are concerned stopped still at the apex of the switch, or only reduced speed until it was moving slowly, and whether it was standing still or moving when plaintiff endeavored to alight. Several witnesses, including plaintiff, testified that it had stopped; others, that it never ceased to move, but that its speed became quite slow, and it was in slow motion when she tried to alight. Plaintiff testified that, when she and her husband started to leave the car, it was standing at the south line of Lucas avenue, which defendant contends was the usual stopping place. Another witness gave testimony going to show plaintiff's attempt to leave the car was made when its rear end was about the middle of Lucas avenue; and still another, that they did so when its rear end was at the switch point and its front end in the middle of Lucas avenue. Plaintiff's husband got off the car, and plaintiff attempted to follow him. He held up his hands to assist her, and just as she stepped on the running board the car either suddenly started from a motionless state, or took on an accelerated speed, and she was thrown on the street and injured. Plaintiff testified that when the car stopped at the switch the conductor cried out, "Downtown transfers!" thereby signifying that passengers who wished to transfer to a Lucas Avenue car should get off at that point. The conductor admitted making the exclamation, but said he did so, not at the switch, but north of it, and that he always gave a similar notice immediately after passing the next cross-street to the north. The testimony of plaintiff's physician goes to show that she sustained a severe shock, which resulted in neurasthenia and hysteria of a permanent type; whereas the physicians who testified in behalf of defendant give the impression that whatever nervousness she was suffering from was due largely to her general state of health and excessive stoutness. We need not particularize about the injuries, because the errors assigned do not go to the amount of damages awarded.

The instructions given and refused which bear on the points to be decided will be copied. For the plaintiff the court instructed as follows: "(1) The court instructs the jury that if you believe and find from the evidence in this case that on the 8th day of June 1904, the defendant was a carrier of passengers for hire by street railway in the city of St. Louis, Missouri, and used the car mentioned in the evidence for said purpose; and if you further find from the evidence that on said day the defendant's employés in charge of the south-bound car on its Grand avenue line, mentioned in the evidence, received plaintiff as a passenger upon said car at or near Easton avenue in said city, and that the conductor in charge of said car collected plaintiff's car fare from her husband and gave him a transfer for plaintiff to be used on defendant's Washington avenue line; and if you further believe and find from the evidence that when said southbound Grand avenue car arrived at or near Lucas avenue, it stopped; and if you further find from the evidence that the place where said car stopped on said occasion was a usual and customary place for defendant's south-bound Grand avenue cars to stop and discharge passengers, and that it was a usual and customary transfer point for passengers on south-bound cars on said Grand avenue line to transfer from said line to defendant's Washington avenue line; and if you further find from the evidence that while said car was so stopped at said place, the plaintiff undertook to alight from said car, and that while she was proceeding to alight therefrom and before she had safely reached the ground, and before she had reasonable time and opportunity to alight safely, defendant's said employés in charge of said south-bound Grand avenue car negligently caused, or suffered said car to be suddenly started forward with a jerk and that thereby plaintiff was thrown upon the street and injured; and if the jury further find from the evidence that defendant's said servants in charge of its said car could, by the exercise of a high degree of care, such as would have been used by careful and skillful men under like circumstances, have prevented such starting of said car at such time, and the alleged injury to plaintiff, and failed to do so; and if the jury further find from the evidence that the plaintiff, prior to and at the time of attempting to alight from said car was exercising ordinary care for her own safety in doing so, under all circumstances shown in the evidence, then plaintiff is entitled to recover. (2) The court instructs the jury that if you find from the evidence in this case that, while the plaintiff was a passenger on the south-bound Grand avenue car referred to in the evidence, said car stopped at or near Lucas avenue, whether for the purpose of enabling the motorman in charge of said car to throw a switch, or for any other purpose, and that while said car was so stopped and standing still, the plaintiff undertook to alight...