Senf v. St. Louis & S. Ry. Co.

• Decision Date: 18 April 1905
• Citation: 86 S.W. 887,112 Mo. App. 74
• Court: Missouri Court of Appeals
• Parties: SENF v. ST. LOUIS & S. RY. CO.

86 S.W. 887

112 Mo. App. 74

SENF v. ST. LOUIS & S. RY. CO.

St. Louis Court of Appeals. Missouri.

April 18, 1905.

STREET RAILWAYS — INJURY TO PASSENGER IN ALIGHTING—VARIANCE—EXCLUDING EVIDENCE—HARMLESS ERROR.

1. Refusal to exclude plaintiff's evidence in an action for injury in alighting from a street car because of variance between the allegation of the petition that the ground was lower than the car, and proof that it was a foot higher than the floor of the car platform, is not ground for reversal, the variance being immaterial; the gravamen of the charge being the stopping of the car at an unsafe place to alight, and defendant not having, as required by Rev. St. 1899, § 655, alleged and proved by affidavit that it was misled by the variance.

2. Though defendant in an action for injury to a passenger in alighting from a street car was entitled to show that the uneven condition of the street was due to its lowering its tracks pursuant to order of the city, exclusion of such evidence was harmless; the court having confined the jury to consideration of defendant's duty to stop its car at a reasonably safe place for plaintiff to get off the car.

3. Though plaintiff, injured in getting off a street car, knew that the company was sinking its tracks at such place, and of the general condition of the ground there, and saw two men slip and fall in getting off the car, yet, she having then said to the conductor that he could not expect her to get off there, and he having taken hold of her arm, got down to the second step, and said, "Jump this way," in doing which she slipped and fell, she cannot be held, as matter of law, to have been guilty of contributory negligence.

4. Though, in a case where there was an immaterial variance between the petition and the evidence as to the height of the ground, relative to the steps of the street car, in alighting from which plaintiff was injured, an instruction followed the language of the petition in that respect, this was not prejudicial; the instruction, as a whole, having correctly declared the law of the case.

5. It is the duty of a street car company to avoid stopping its cars to discharge passengers where the condition of the street makes it dangerous to get off; the relation of carrier and passenger not ending till the passenger is off the car, and on the street in safety.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by Gertrude Senf against the St. Louis & Suburban Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The action is to recover damages for injuries alleged to have been caused by plaintiff stepping on the ground as she disembarked from one of defendant's street cars. After alleging her relation to defendant as that of passenger for hire, and that her destination was Kingshighway, in the city of St. Louis, where the defendant's car stopped, in response to a signal from her, to permit her to alight, the petition states: "That defendant's servants, agents, and employés in charge of and operating said car, instead of stopping at the usual stopping place, on the west side of Kingshighway, or at some point which would afford a reasonably safe place for a passenger to alight, unknown to plaintiff, carelessly and negligently caused said car to halt at a point about the center of Kingshighway, where the track had been elevated, or the ground about excavated to such an extent as to make the distance from the lower step of the car to the ground too great for a passenger to alight with either comfort or safety. That the ground about the step of the car where the car was stopped, and where plaintiff was forced to alight, was disturbed, uneven, and insecure, all of which was unknown to plaintiff at the time the car was stopped. That, perceiving that the car had not been stopped at the usual stopping place, and being unable to determine the condition of, or the distance to, the ground at the point where the car was stopped, owing to darkness, plaintiff paused and hesitated, and indicated to the conductor in charge of said car, who was defendant's agent and employé, her unwillingness to leave said car, but that said servant, agent, and employé carelessly and negligently ordered her to alight, telling her to jump, which she did, exercising on her part all due care and caution possible in so doing, thereby falling violently to the ground, and by reason of the impact and by reason of the unsafe and uneven character of the ground, into a hole in which her right foot was forced. She received serious and permanent injuries to her right limb and thigh; the tendons of the knee joint being twisted and severed, and the thigh being painfully and seriously bruised and wounded." The answer was a general denial, and the following affirmative defense of contributory negligence: "Further answering, this defendant says that whatever injuries, if any, were received by the plaintiff on the occasion in question, by and on account of the matters and things mentioned in her amended petition, were caused by her own negligence directly contributing thereto, in this, to wit: that on said occasion the plaintiff negligently stepped or jumped from the car, without using ordinary care in so doing, and heedlessly jumped, relying upon her own judgment, and not upon the representation of the conductor as to where she would alight."

Plaintiff testified that she was 23 years old; that she boarded one of defendant's cars at Sixth and Locust streets about 6 o'clock p. m. on the evening of October 4, 1902, paid her fare, and rode to Kingshighway, where the car stopped in response to her ringing the bell; that when the car stopped she arose from her seat and walked to the back platform to get off, and waited "until two gentlemen jumped off, and they both fell or slipped, and made remarks to the conductor on the car, and so I refused to get off, and I remarked it twice, and said, `You cannot expect me to get off here,' and with that the conductor took hold of my arm, and stepped on the second step, and said, `Jump this way, madam,' which I did, and I fell and slipped on the incline." Plaintiff stated that the conductor indicated the east as the direction to alight, and she stepped off in that direction, slipped, and fell. She laid there for a moment, was helped to the sidewalk by some gentleman, who offered to accompany her home, and whom she told she could not tell whether or not she was hurt, and walked to her home. Plaintiff also stated that the day was gloomy, it having rained, and that it was very dark when she reached Kingshighway; that she lived about a block from the crossing, used the Suburban cars frequently, and had boarded a car at that place on the very morning of the accident. When asked about the condition of the tracks at that place on the day of the accident, plaintiff answered: "All I remember is, the condition of the tracks were lower, and Kingshighway was being made a straight grade." There were mud steps in the bank at the west side of Kingshighway in the morning. The following appears in plaintiff's cross-examination: "Q. You knew the condition of the roadway after the rain, did you? A. Yes, sir. Q. At the time you took the car to go down town? A. Yes, sir. Q. You knew it had been raining and was very slippery? A. Yes, sir. Q. You knew the railway track was in course of construction through Kingshighway? A. Yes, sir. Q. And when you left the car you left it in the safest place you could leave it at that time? A. Yes, sir. Q. And the conductor told you to `step this way, madam,' and, by stepping that way, that was the safest way to get off at that point? A. Yes, sir; at the middle of the street. Q. Did the others who had slipped get off in another way? A. I presume they did. Q. You saw them get off, and saw them slip, and then the conductor said to you, `Get off this way,' and you did? A. Yes, sir. Q. You had your deposition taken, didn't you? A. Yes, sir. Q. And in your deposition do you not say that, if you had got off the other way, you would have had your foot cut off? A. Yes, sir; I would have had both limbs hurt. Q. By getting off the way you did get off at the request, as you say, of the conductor, that was the safest way to leave the car at that point? A. Yes, sir. Q. When you stepped off the car, it was lighted? A. Yes, sir; it was light in the car. Q. Did you step up or down when you alighted? A. I was to step up. Q. The embankment, then, was higher than the railway tracks? A. Yes, sir. Q. That you are positive about? A. Yes, sir." Defendant moved to strike out the plaintiff's evidence for the reason the petition alleged that the ground about the track was too low for a passenger to step from the ground, whereas plaintiff's evidence shows that it was a foot higher than the track, and for this reason contradicts the allegations of the petition in respect to the condition of the ground. The motion was overruled, and defendant saved its exceptions. Plaintiff testified that there was no safe place to alight beyond where she got off, as there was an excavation there also; that she did not ask the conductor to carry her to any other place to get off, for the reason Kingshighway was her stopping place, and she did not know of any safe place in either direction near Kingshighway; that she had to get off there, or be carried a long distance, on account of the condition of the tracks and the street. Evidence tending to show the character and extent of the injuries, and the money she expended for medical attention, was offered by plaintiff.

For defendant, J. T. Jackson testified that he was an engineer employed in making surveys for the defendant railroad company; that the tracks were...