Reagan v. St. Louis Transit Co.

• Decision Date: 24 February 1904
• Parties: REAGAN, Appellant, v. ST. LOUIS TRANSIT COMPANY
• Court: Missouri Supreme Court

79 S.W. 435

180 Mo. 117

REAGAN, Appellant, v. ST. LOUIS TRANSIT COMPANY

Supreme Court of Missouri, First Division

February 24, 1904

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.

Affirmed.

A. R Taylor for appellant.

(1) The instruction given by the court is not the law as applicable to carriers of passengers. It is the law of the relation between carrier and passenger that it is the duty of the carrier to safely carry the passenger to her point of destination on the carrier's line, and there to stop the car and keep it stopped a reasonable time, to enable the passenger to alight in safety from the car whilst so stopped -- if the carrier can do so by the highest practical care of a very prudent and skillful carrier of passengers. The starting of the car before a passenger has time to alight, or whilst in the act of alighting in the presence of the conductor, is prima facie negligence, and casts upon the carrier the burden of proving that such starting of the car could not have been prevented by the exercise of the high degree of care exacted by the law of the carrier. This is the rudimental law of the relation. Hutchinson on Carriers (2 Ed.), secs. 800-801; Dougherty v. Railroad, 81 Mo 329; Och v. Railroad, 130 Mo. 52; Hite v. Railroad, 130 Mo. 137. (2) The ruling of the court awarding only fifteen minutes to a side to argue the case was a practical denial of the litigant to be heard in court upon her case. There was scarcely time under this allowance for counsel to explain the law of the case to the jury as contained in the instruction, without any effort to recall the testimony of the witnesses and apply the law to the testimony. White v. People, 90 Ill. 117; Dille v. State, 34 Ohio St. 617; Hunt v. State, 49 Ga. 255; State v. Page, 21 Mo. 257; State v. Baker, 136 Mo. 83. (3) Rule 29 of the circuit court of the city of St. Louis is an innovation on the practice which existed in this State during its history, and we know of no rule like it elsewhere. It seems to be a discrimination against plaintiff's rights in court. There is an apparent partiality in the rule. Thus the plaintiff must open his case by argument. If he does not do so he loses the right to be heard at all. Yet, the defendant has the right to argue, whether the plaintiff wishes to make an opening argument or not. (4) The action of the trial court was arbitrary and despotic as evidenced by the record. The court first announces that counsel will be allowed twenty minutes a side for the argument. Counsel for plaintiff objects to the limit of twenty minutes and asks for further time. Thereupon the court, we submit, forgetting its dignity and responsibility and in a spirit of resentment because counsel for plaintiff did not meekly accept, but objected and protested, took away from the insufficient time allotted twenty-five per cent of the time he had first allotted. Can a court, whose high purpose it is to see that justice be administered, give its approval to such conduct?

Geo. W. Easley, with Boyle, Priest & Lehmann for respondent.

(1) This court has no jurisdiction of this cause, because it is not shown by the appellant's abstract of record that any final judgment was entered, from which an appeal would lie, nor does the abstract filed show that any appeal was ever granted appellant by order of the court below. R. S. 1899, secs. 806-809; State v. Roscoe, 93 Mo. 146. (2) The record, as shown by appellant's abstract, does not show that any bill of exceptions was filed in the court below, by order of the court entered of record, nor is there anything in the record to identify that part of the statement made in the abstract which bears a few of the earmarks of a bill of exceptions. The same can not be considered by this court as part of the record herein. Reno v. Fitz Jarrell, 163 Mo. 411; State v. Baty, 166 Mo. 561; Shoe Co. v. Williams, 91 Mo.App. 511; Allen v. Funk, 85 Mo.App. 460. The only thing to show the filing of a motion for a new trial is the recital in the unidentified and unfiled bill of exceptions. This is insufficient. McCormick & Co. v. Crawford, 72 S.W. 492. (3) There was no error in the instruction given for defendant, of which the appellant complains. The burden of proof was upon the plaintiff. The accident to plaintiff was not of a character to cast upon defendant the burden of disproving negligence. The Missouri cases hold that presumptions of negligence may be made when the accident is caused in the followings ways: (a) Where the collision of the vehicle, in which the passenger was being transported, was with another vehicle of the carrier, or by reason of the vehicle of another coming in contact with the carrier's vehicle, because of the negligence of the carrier. Clark v. Railroad, 127 Mo. 197; Feary v. Railroad, 62 S.W. 542; Shuber v. Railroad, 87 Mo.App. 618; Obsen v. Railroad, 152 Mo. 426. (b) Where the carrier's vehicle broke down. Lemen v. Chandler, 88 Mo. 533. (c) Where the carrier's vehicle was derailed. Hipley v. Railroad, 88 Mo. 351; Furnish v. Railroad, 102 Mo. 453. The true rule in Missouri seems to be thus expressed. The court, after discussing the question of presumption, says: "The rule thus announced has no application where the injury is occasioned by an outside agency and without fault on the part of the carrier. In such a case a recovery can only be had upon proof of negligence on the part of the carrier." Hite v. Railroad, 130 Mo. 132; Potts v. Railroad, 33 F. 610. (4) There was no error in the time limited for argument. The whole question for discussion was as to whether the plaintiff was jerked off the car or not. Ample time was given for a thorough discussion of that subject.

MARSHALL, J. Burgess, Gantt and Fox, JJ., concur; Robinson, C. J., Brace and Valliant, JJ., dissent.

OPINION

MARSHALL

DISSENT BY: VALLIANT

VALLIANT, J.

Plaintiff was a passenger on a street car on defendant's railway in St. Louis and received injuries to her person by falling while she was in the act of alighting. The petition alleges that when the car reached the point of the plaintiff's destination, in obedience to her signal, for the purpose of allowing her to alight, it either stopped or slowed down so as to be moving imperceptibly (plaintiff being unable to say which), whereupon she attempted to alight and while in the act of doing so the defendant's servants in charge of the car negligently caused or suffered it to move forward with increased motion, which caused the plaintiff to be thrown upon the street and suffer certain severe injuries. The answer was a general denial and a plea of contributory negligence, to which there was a reply.

The testimony on the part of the plaintiff tended to prove the cause of action as stated in her petition, and that on the part of the defendant tended to prove the contrary and to sustain the plea of contributory negligence.

There were four witnesses examined on the part of the plaintiff and five for the defendant. Their testimony, as reported, covers fifty-three pages in the bill of exceptions. The instructions given cover four closely written pages of manuscript.

The instructions given on behalf of the plaintiff were to the effect that if for the purpose of allowing the plaintiff to alight the car had been stopped or slowed down so that its motion was imperceptible and the plaintiff thereupon was in the act of alighting and while she was in that act and before she had a reasonable time in which to alight, the servants of defendant in charge of the car caused or suffered it to move forward with an increased motion, and thereby the plaintiff was thrown upon the street and injured, and that if the defendant's servants had exercised a high degree of care and skill such as careful and skillful railway operators would exercise under like circumstances they would have prevented such motion of the car, but that they neglected to do so, the plaintiff was entitled to recover.

The instructions for the defendant were to the effect that if the plaintiff suffered the injuries complained of in consequence of attempting to alight from the car while it was moving, under such circumstances as that a woman of ordinary prudence would not have so attempted, she was not entitled to recover.

Then the court of its own motion gave this instruction which is the only one complained of:

"The burden of proving the facts set out in these instructions as necessary to be proved in order to enable plaintiff to recover is upon the plaintiff -- that is, the preponderance or greater weight of the testimony must be on the side of the plaintiff; and unless she has so proven them she is not entitled to recover. The burden of proving any negligence in the plaintiff is upon the defendant."

To the giving of which exception was taken.

The following which was one of the rules of practice of that court was enforced in this case:

"Rule 29. Trial, Argument of Counsel. -- In cases tried before a jury the plaintiff shall have the privilege of opening and closing the argument; the opening argument to be made after the evidence is in, and after the instructions, if any, have been given. Should the plaintiff decline to make the opening argument, he will be considered as thereby waiving his privilege of closing the same, and shall not be allowed to do so, but the defendant shall, nevertheless, have the privilege of making his argument. Before the argument begins, the court will announce how much time will be allowed on each side for argument, each side being allowed the same length of time. The plaintiff may apportion the time allotted to him between...