Schepers v. Union Depot Railroad Co.
| Decision Date | 19 February 1895 |
| Parties | Schepers v. Union Depot Railroad Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.
Reversed and remanded.
""O. J. Mudd with ""G. A. Finkelnburg for appellant.
(1) Schepers was not a passenger, and the servants in charge of the car owed him no duty but that of ordinary care to avoid injury to him after they saw him in actual danger. If the deceased presented himself at the proper time and place, and the servants in charge of the car saw him and became aware of his intention to board the train, or by the exercise of proper care would have so seen and become aware -- conditions wholly ignored in this instruction -- then defendant owed him the highest degree of care. But even assuming these conditions the degree of care is erroneously stated in this instruction. ""Dougherty v. Railroad, 97 Mo. 647; ""Furnish v. Railroad, 102 Mo. 438; ""Smith v. Railroad, 108 Mo. 243; ""Jackson v. Railroad, 118 Mo. 199. (2) The court erred in the matter of giving instructions for plaintiff. The petition charges no negligence in failing to have a lifeguard on the car. Plaintiff can not plead one defect and recover on another. ""Buffington v. Railroad, 64 Mo. 246; ""Gurley v. Railroad, 93 Mo. 445; ""Ely v. Railroad, 77 Mo. 34; ""Waldhier v. Railroad, 71 Mo. 514. Instruction number 5, given for plaintiff, was also erroneous in telling the jury that a presumption of law existed in plaintiff's favor, so far as the defense of contributory negligence was concerned. ""Rapp v Railroad, 106 Mo. 423; ""Moberly v. Railroad, 98 Mo. 183; ""Myers v. Kansas City, 108 Mo. 480.
""John A. Gilliam and ""John W. Drabelle for respondent.
(1) Persons getting on and off these cars are entitled to the protection of passengers. ""Weber v. Railroad, 100 Mo. 210; ""Ridenour v. Railroad, 102 Mo. 270; ""Murphy v. Railroad, 43 Mo.App. 342; ""Swigert v. Railroad, 75 Mo. 475; ""Straus v. Railroad, 86 Mo. 421. (2) The law presumes every man to be using due care for his own safety and that presumption is not overthrown by the mere fact of his being injured; there must be evidence of carelessness or negligence on his part. ""Buesching v. Gaslight Co., 73 Mo. 233; Shearman and Redfield on Negligence [4 Ed.], secs. 109, 110; ""Hoyt v. City, 41 Wis. 105; ""Gay v. Winter, 34 Cal. 153; ""Allen v. Willard, 57 Pa. St. 374; ""Railroad v. Rowan, 66 Pa. St. 393. Where the evidence of negligence is irresistible it is the duty of the judge to decide, but where the facts, or the inferences to be drawn from them, are in any way doubtful, the whole matter should be submitted to the jury under proper instructions. ""Barton v. Railroad, 52 Mo. 253; ""Pendrill v. Railroad, 34 N. Y. Supr. Ct. 481; ""Dickens v. Railroad, 1 Abb. (N. Y.) App. 504; ""Keller v. Railroad, 2 Abb. (N. Y.) App. 480; ""Fernandes v. Railroad, 52 Cal. 45.
This is an action, under the statute, to recover the sum of $ 5,000, as damages, for the death of plaintiff's husband by the alleged negligence of defendant's employees in charge of one of its trains of street cars. A trial resulted in a verdict and judgment for plaintiff and defendant appealed.
Defendant operated by electric power a line of street cars along Russell avenue, Twelfth street, and other streets in the city of St. Louis. Russell avenue runs east and west through the city and crosses Twelfth street at right angles. The railway track is located along Russell from the east to Twelfth street, where it turns south by a long curve onto that street. There is a rising grade on the avenue until Twelfth street is reached, from which there is a descending grade of about four feet in one hundred. Two cars, known as the motor car and trailer, were run in a train on the occasion of the death of plaintiff's husband. A curve of the railway track extends down Twelfth street about twenty-seven feet from the center of the cross walk on the south side of the avenue. On the southwest corner of these streets is a saloon having a side door opening to Twelfth street, near the corner of the building. Just prior to the accident, deceased was in the saloon awaiting a train going south on Twelfth street, on which he intended taking passage. On seeing a train passing upon the curve he left the saloon hastily, ran down Twelfth street, passed the trailer, and undertook to board the motor car while in motion, and in doing so was thrown down and the trailer ran over him, causing his death.
The petition charges in substance that while the cars were going slowly round the curve at Twelfth street and Russell avenue, he hailed them, by beckoning with his hand, with the view of taking passage; that both the conductor of the motor and the trailer car knew from his actions that he intended and desired to take passage thereon, but they negligently failed to signal the motor man thereof; that while the cars slowly rounded said curve he took hold of the motor car to get on, when the electric power was negligently, suddenly and without warning applied by the motor man with great force, by which the cars were suddenly jerked forward, and he was thereby thrown upon the track and killed. The petition also charged negligence in failing to provide a proper lifeguard between the two cars.
The answer was a general denial, and a plea of contributory negligence.
An ordinance of the city required that "when any car shall be required to stop at the intersection of streets to receive or leave passengers, it shall be stopped so as to leave the rear platform partly over the crossing." The evidence offered by plaintiff tended to prove that when deceased came out of the saloon at the side door, the hind or trailer car had not yet passed over the crossing; that deceased held up his hand as a signal that he wished to take passage, and that the conductor on the motor saw the signal, but gave no notice to the motor man to stop; that the train was then moving at the rate of three or four miles per hour; that deceased ran in a southeasterly direction toward the motor car, caught up with it, and took hold of the hand hold on the rear dash board with his left hand, and as he reached with his right hand for the hand hold on the body of the car, the speed was suddenly increased and deceased was thrown down and the trailer ran over him. It was shown by the evidence introduced by plaintiff that deceased was not on the street when the forward car reached the crossing, and that neither the motor man nor the conductor on the trailer saw him approaching the cars at all. The conductor on the motor car saw him when within five to ten feet of that car, but gave no signal to stop until he saw the danger to which deceased was exposed.
The evidence of defendant tended to prove that the hind car had passed the crossing before deceased came out of the saloon, and was running down the grade at increasing speed, and in the usual manner, when deceased undertook to board it; that there was no unusual jerk or sudden increase in speed, and that every effort was made to stop the train, as soon as the conductor saw the peril in which deceased had placed himself.
Evidence was also offered by plaintiff to the effect that, at the time of the accident, there was in approved use on some street railroads in the country an appliance beneath cars, known as the "Johnson fender," which was a protection to passengers and train employees who might fall between the cars. This fender was not in use on these cars. Whether this contrivance was in approved use, and whether it would afford protection was disputed. Evidence was given supporting both theories.
Eight instructions were given the jury at request of plaintiff. Some of these are very lengthy, and we will only undertake to consider the principles of law involved in them without setting them out in full.
I. It may be said in the first place that reversible error was committed in an instruction given plaintiff on the question of contributory negligence. By this instruction the jury was told "that the law presumes every man to have been using due care for his own safety, and that presumption is not overthrown by the mere fact of his being injured; that to overcome the presumption of such due care there must be evidence of carelessness and negligence on his part."
There was evidence before the jury tending to prove contributory negligence. Every circumstance from which the death resulted was before the jury, and it was for them to determine therefrom whether the negligence of deceased was a contributing cause. Such an instruction has been disapproved in several recent cases. Moberly v. Railroad, 98 Mo. 183, 11 S.W. 569; Rapp v. Railroad, 106 Mo. 423, 17 S.W. 487; Myers v. City of Kansas, 108 Mo. 480, 18 S.W. 914.
II. It is difficult from the petition to tell whether the pleader intended to count upon negligence of defendant as a common carrier of passengers, or upon negligence in the mere management and operation of its cars. It is clear, however, that the case was tried upon the theory that deceased was a passenger and entitled to the high degree of care a carrier owes to a passenger. This is shown by the evidence introduced by plaintiff and by the instruction asked by her, and given by the court. The theory of the defense is that deceased never became a passenger, and its duty to him was only that of proper diligence to avoid injuring him when his danger became apparent. Evidence was offered by defendant with a view of sustaining its theory. The court at the request of plaintiff gave this instruction:
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