Schaefer v. St. Louis & Suburban Railway Company

• Decision Date: 26 March 1895
• Citation: 30 S.W. 331,128 Mo. 64
• Parties: Schaefer, Appellant, v. St. Louis & Suburban Railway Company
• Court: Missouri Supreme Court

30 S.W. 331

128 Mo. 64

Schaefer, Appellant, v. St. Louis & Suburban Railway Company

Supreme Court of Missouri, First Division

March 26, 1895

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Affirmed.

Carlisle & Ottofy for appellant.

(1) Refused instruction number 1 for plaintiff should have been given. The plaintiff was a passenger, even before he stepped upon the car, or after he left it. Buck v. Railroad, 108 Mo. 185; Dougherty v. Railroad, 9 Mo.App. 482 485, and cases there cited; Burbridge v. Railroad, 36 Mo.App. 677. First. The court fails to define what constitutes a passenger; although it directs the jury to determine whether or not plaintiff was a passenger. Second. Being a passenger the sudden starting of the car constituted negligence. Buck v. Railroad, 108 Mo. 185; Wyatt v. Railroad, 55 Mo. 485; Dougherty v. Railroad, 81 Mo. 329, s. c., 97 Mo. 647. (2) Refused instruction number 2 should have been given. When plaintiff makes out a prima facie case of negligence against a carrier the burden of proof is thrown upon him to show either first, that the utmost human care was exercised at the time, or, second, that the accident occurred by reason of some cause beyond the carrier's control. Instruction number 3 given for defendant is not the law. Dougherty v. Railroad, 9 Mo.App. 482; s. c., 81 Mo. 329; s. c., 97 Mo. 667; Coudy v. Railroad, 13 Mo.App. 588; s. c., 85 Mo. 85; Hipsley v. Railroad, 88 Mo. 352; Furnish v Railroad, 102 Mo. 452, and cases cited, p. 453; Roberts v. Johnson, 58 N.Y. 617. (3) Instruction number 2, given for defendant is not the law. It is not negligence to board a slowly moving car at a platform. Fulks v. Railroad, 111 Mo. 335, and cases cited on p. 340; Duncan v. Railroad, 48 Mo.App. 662. First. The instruction assumes a fact not in evidence. There is no evidence to justify the giving of this instruction. There is no testimony that plaintiff attempted to board a moving car. (4) The verdict is against the evidence and the weight thereof and is the result of passion, bias and prejudice on the part of the jury. Their conduct throughout the trial shows it. Hipsley v. Railroad, 88 Mo. 354; Avery v. Fitzgerald, 94 Mo. 216; Lionberger v. Pohlman, 16 Mo.App. 398; Spohn v. Railroad, 87 Mo. 84; Empey v. Railroad, 45 Mo.App. 425. (5) Counsel for defendant, in his argument, made remarks unwarranted by the evidence and prejudicial to plaintiff's case. Brown v. Railroad, 66 Mo. 588; Koch v. Hebel, 32 Mo.App. 114; Wilburn v. Railroad, 48 Mo.App. 231. (6) Instruction number 4 given for defendant is improper. There is no evidence in the record to support it. (7) The instructions given are conflicting and this is error. Instruction number 2 given for plaintiff requires the jury to find that he was a passenger. Instruction number 3 for plaintiff and all the instructions for defendant eliminate that question from the case. Bluedorn v. Railroad, 108 Mo. 450; Reardon v. Railroad, 114 Mo. 405; State v. Cable, 117 Mo. 386.

Lee & McKeighan and Montague Lyon for respondent.

(1) There was no error in refusing plaintiff's refused instruction number 1, for the reason that, even though the instruction may contain a correct abstract proposition of law, there is no evidence in the case to support the giving of the instruction as offered by the plaintiff, and, if given, would have been misleading; and, moreover, the instructions given in the case fully and fairly presented the issues to the jury, and the refusal of said instruction could not have been prejudicial to the plaintiff. Bergeman v. Railroad, 104 Mo. 77; Schroeder v. Railroad, 108 Mo. 322; Fulks v. Railroad, 111 Mo. 335; Payne v. Railroad, 112 Mo. 6; Nicholson v. Golden, 27 Mo.App. 132. (2) Plaintiff's refused instruction number 2 was properly refused, because it undertakes to tell the jury that the mere sudden starting of the car while the plaintiff was a passenger, is presumptive evidence of negligence on the part of the defendant, and that the burden of proof is upon the the defendant to exonerate itself from such negligence; and because the instruction does not contain the element of the unusual or violent character of the starting of the car, which was necessary to raise the presumption that the defendant was guilty of negligence, and because the instruction if given, would virtually exclude from the consideration of the jury the question of the plaintiff's contributory negligence. Dougherty v. Railroad, 97 Mo. 647. Instruction number 3 given for the defendant states the law correctly and was properly given. (3) Instruction number 2 given for the defendant is the law, and is in perfect harmony with the plaintiff's contention that it is not negligence per se to board a slowly moving car at a platform. This instruction leaves the question of the plaintiff's negligence to be determined as a fact by the jury. Fulks v. Railroad, 111 Mo. 335. (4) There is ample testimony from which the jury might reasonably have inferred that the plaintiff attempted to board the car while it was in motion. (5) The verdict of the jury, under all the testimony in the case, was in favor of the right party, and should not be disturbed. (6) The alleged objectionable remarks of counsel for the defendant in his argument to the jury, were warranted by the evidence. No prejudicial error appears which would authorize a reversal of the judgment on this ground. Burdoin v. Trenton, 116 Mo. 358; State v. Thornton, 108 Mo. 640; Huckshold v. Railroad, 90 Mo. 548.

OPINION

Robinson, J.

This is a suit brought by plaintiff to recover $ 5,000 damages for injuries alleged to have been received at one of the defendant's stations on the St. Charles rock road, in the city of St. Louis, on August 9, 1892. Defendant is a street railroad company operating its line by electric power.

"Plaintiff's petition states that as he was about to board one of the trains on defendant's road for the purpose of being transported as a passenger from its station, and while he was in the act of getting on said train at its platform, but before he had done so, the said train, owing to the negligence and carelessness of the employees or servants of defendant in charge thereof, was suddenly started, and he was thereby thrown violently down upon the platform and dragged thereon, and that he was thereby greatly bruised and severely injured both internally and in his limbs."

The answer was a general denial, coupled with a plea of contributory negligence, and followed by the usual replication. There was a trial by jury and verdict for defendant. Many errors are assigned by appellant; but it is only necessary to notice a few of them in order to show the result we have reached.

The testimony in brief shows: That plaintiff lives at Wellston, on the south side of the old St. Charles road, about seventy-three steps west of defendant's track; that his house stands back ten or fifteen feet from the street; that on the morning in question, between 6 and 7 o'clock, he started from his home down town to work; that when he reached the platform he saw a car coming, waved his hand at the motorman to stop, and as the car came by the platform the motorman made a kind of a "jerk stop," as he expressed it; that he got his right foot on the step of the motor car and then the motorman made a jerk, and he fell on the platform, but kept hanging with his right foot, and was dragged, he thinks, about five feet to the other end of the platform. He tried to get on the back platform of the motor car and stepped up with his right foot on the first step; that the train stopped about twenty-five feet below the platform. When the train did stop he got on and went to his work. There were two cars in the train, a motor, and one attached thereto called "a trailer." The conductor was standing on the front platform of the trailer. Plaintiff testified that the car was going "down the hill pretty fast" and that "they came down tolerably fast" always. Plaintiff further testified that "the right stop was made twenty-five feet below the platform, and that this stop was made for him to get on down there."

It seems useless to go into the evidence at any greater length. It shows that the plaintiff was standing on the platform, saw the train coming and waved his hand for it to stop; that it was coming fast, the motorman endeavoring to stop it at the platform, but failed to do so; that the plaintiff endeavored to board the train before it did stop.

Appellant complains first, that the court erred in refusing to give instructions numbers 1 and 2 asked by plaintiff, which read as follows:

"1. The court instructs the jury, that although when the occurrence in question happened, the plaintiff had not paid his fare, and by reason of such event got off without paying yet, if the jury believe from the evidence that he got on the step of the car for the purpose of getting upon the platform as a passenger, with the intention of paying his fare when called upon, then he was a passenger, and the defendant owed to him the same duties as if in fact he had paid his fare.

"2. The court further instructs the jury, that if they believe from the evidence that plaintiff was a passenger on one of defendant's cars (and while exercising reasonable care and diligence with respect to his own safety), the car was suddenly started, causing the injury now being inquired into, then the burden is thrown upon the defendant to show to the satisfaction of the jury that the servants and employees of the defendant, managing the car, exercised the utmost human care in the management of the same, or that the accident occurred by reason of some cause not under the control of the servants and employees of defendant, and unless the defendant has so satisfied the jury, their verdict...