Reisenleiter v. United Rys. Co. of St. Louis

• Decision Date: 24 January 1911
• Citation: 134 S.W. 11,155 Mo. App. 89
• Parties: REISENLEITER v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

134 S.W. 11

155 Mo. A. 89

REISENLEITER v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

January 24, 1911.

Rehearing Denied February 7, 1911.

1. CARRIERS (§ 318) — INJURIES TO PASSENGERS — EVIDENCE.

In an action for injuries to a passenger while attempting to board a street car, slight evidence in support of the allegations as to defendant's ownership or operation of the car at the time of the injury is sufficient where it is not combatted, and, except for the general denial, there is no intimation that defendant resists the claim on the ground that it was not the operator of the car.

2. CARRIERS (§ 316) — INJURIES TO PASSENGERS — OWNERSHIP OF ROAD — BURDEN OF PROOF.

Where, in an action for injuries to a passenger while attempting to board a street car, the evidence showed that plaintiff was injured by the jerking forward of a car on a designated avenue in a city, but there was no evidence as to whose car it was or by whom it was operated, and, so far as the evidence disclosed, any company other than defendant might have owned or operated the car, plaintiff could not recover.

3. PLEADING (§ 127) — ANSWER — ADMISSIONS.

A plea of contributory negligence interposed by a street railway company in an action for injuries to a passenger while attempting to board a car, which alleges that whatever injuries, if any, plaintiff sustained, were caused by his own negligence in attempting to board the car while in motion, merely admits that plaintiff attempted to board a car, which he alleges was operated by the company, but does not admit that the company owned or operated the car.

4. APPEAL AND ERROR (§ 714) — RECORD — MATTERS NOT APPEARING BY RECORD.

The court on appeal from a judgment for plaintiff in a suit for injuries sustained while attempting to board a street car cannot refer to other cases which have been heard in the court with reference to defendant for information as to whether it operated the car at the time of the injury, following Little Rock Trust Co. v. Southern Missouri & A. R. Co., 195 Mo. 669, 93 S. W. 944.

5. EVIDENCE (§ 22) — JUDICIAL NOTICE — OWNERSHIP OF STREET RAILROAD.

Courts cannot take judicial notice that on a designated date a street car railway company was the owner of a line on a street in the city of St. Louis, or was operating a car on that line.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by William Reisenleiter against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This suit was instituted by plaintiff in the circuit court of the city of St. Louis to recover of defendant the sum of $10,000 damages for personal injuries sustained by him through the alleged negligence of defendant. In substance, the second amended petition, upon which the case was tried, alleged that on May 16, 1907, the defendant was a corporation operating an electric street railroad for the carriage of passengers for hire over and along Easton avenue in the said city; that on said day, at the northwest corner of Easton avenue and Whittier street, a customary place for receiving passengers, one of the cars operated by the defendant on said line had slowed down to almost a standstill to receive plaintiff as a passenger pursuant to his signal to stop, but that while he was entering upon said car holding the handrailing thereof, and in the act of stepping thereon defendant's servants and agents in charge of said car, instead of bringing said car to a standstill as it was their duty to do until plaintiff had a reasonable time to get aboard, negligently caused the power to be suddenly and without warning applied to said car with great force, by reason whereof said car was suddenly jerked forward with great and more than usual violence, etc., before plaintiff had a reasonable opportunity to get upon same; that thereby plaintiff was severely and permanently injured, etc., all to his damage, etc. The answer first contains a general denial of each and every allegation in the second amended petition contained, and then the following: "For another and further answer and defense this defendant says that whatever injuries, if any, the plaintiff sustained, were caused by his own carelessness and negligence in attempting to board the street car while it was in motion." There was a trial had before the court and jury, and at the close of plaintiff's evidence defendant asked,...