Seymour v. Citizens' Ry. Co.

• Decision Date: 27 February 1893
• Citation: 21 S.W. 739,114 Mo. 266
• Parties: SEYMOUR v. CITIZENS' RY. CO.
• Court: Missouri Supreme Court

21 S.W. 739

114 Mo. 266

SEYMOUR v. CITIZENS' RY. CO.

Supreme Court of Missouri, Division No. 1.

February 27, 1893.

PASSENGER ON STREET CAR — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

1. It is not negligence per se for a passenger on a street car to stand on the step of the car, outside of a gate placed between the step and the platform, at the express or implied invitation of the driver; the danger not being so obvious that it can be said that a reasonable man would disobey the invitation.

2. Plaintiff, while riding on the step of defendant's street car, was knocked off by a derrick standing near the track, and injured. It appeared that plaintiff knew that a derrick was being used at that point for the construction of a sewer, and that defendant had moved its tracks nearer the derrick during the day. Held, that the question as to whether plaintiff was negligent in failing to see the derrick was for the jury.

3. The fact that the track had been moved nearer the derrick on the day of the accident tends to show negligence on the part of defendant's driver, in that he must have known of its proximity to the cars, and for that reason should have used care to avoid exposing passengers to danger; and the question as to his negligence should have been left to the jury.

4. Act Jan. 16, 1860, providing that street-railway companies in St. Louis "shall not be liable for injuries to persons occasioned by their getting on or off the cars at the front or forward end of the car," does not take away the right of a passenger to recover, who, through the negligence of such a company, is either thrown or caused to fall off such front end or platform.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Action by Martin Seymour against the Citizens' Railway Company to recover for personal injuries sustained through defendant's alleged negligence. There was a judgment for defendant, and plaintiff appeals. Reversed.

A. R. Taylor, for appellant. Smith P. Galt, for respondent.

BLACK, C. J.

The plaintiff brought this suit against the defendant, a street-railway company, to recover damages for injuries which he sustained while a passenger on one of the defendant's cars. At the close of the plaintiff's evidence, the defendant interposed a demurrer thereto, which was sustained, and the plaintiff appealed. The evidence discloses the following facts: The defendant's road runs east and west along Easton avenue in the city of St. Louis. At the time of the accident the defendant was converting its horse railroad into a cable road. The accident occurred on Sunday, 18th December, 1887. On that day the plaintiff had been engaged in finishing up the new track by putting gravel between the paving stones at a point near Taylor avenue, which was about three fourths of a mile west of the place of the accident. The plaintiff was in the employ of contractors, and was not in the employ of the defendant. At 5 o'clock in the evening of that day he took a car going east. According to his evidence he got on the car when it stopped at Taylor avenue. It seems the car was full of passengers, so that there was neither sitting nor standing room on the inside. He first went to the rear platform, but found so many persons standing on it that he could not get on. He then went to the forward platform, and found that crowded with passengers. There was an iron gate at the front platform, extending from the outer side of the car across the platform to the dashboard, and the gate extended down to within a few inches of a step leading up to the platform, which step extended out six or seven inches beyond the outer line of the car. He and another person by the name of Kelly stood on this step. After going one or two blocks, the driver, who was at the dashboard, said to them, "You had better take out the gate and get inside." They took the gate out, but could not find standing room on the platform. Plaintiff said, "I will try to sit down here, and hold the gate." It seems he proposed to sit on the edge of the platform, resting his feet on the step, and hold the gate in his lap, but the driver would not allow him to do that. Being asked why he did not stand on the inside of the gate, and put it up, he said, "I could not stand there; I had no room on the step inside of the gate." The driver then told him to get on the outside, and put the gate in its place. Plaintiff and Kelly then put the gate in place, and stood on the step outside of it. They occupied this position while going a distance of about a half mile. The plaintiff held to the car with his left hand and to the gate with his right, with his dinner bucket on the right arm. Kelly held to the gate with one hand and the dashboard with the other. When they reached Sarah street the plaintiff was struck by a projecting timber of a derrick standing on the street, and knocked off. He fell upon the side of an embankment extending some eighteen inches or two feet above the track; his feet slipped under the car wheels. Both legs were crushed, so as to necessitate amputation below the knees. The defendant company had nothing to do with this derrick. It was a large contrivance used by contractors in constructing a sewer, and was moved along as the work of the sewer progressed. It consisted of timbers, pulleys, a track, and a dumping apparatus. The end next the car was about four feet high, and the other end much higher. At the lower end a timber projected out within ten inches of the passing car, and it was this projecting timber which struck the plaintiff. A policeman, who reached the place a few minutes after the accident, says he found a nail in the end of the timber with an unlighted lamp hanging on it. This projecting timber was on a line with the lower edge of the windows of the car; that is to say, half way up the car. It appears Kelly, the other person standing on the step, was not injured. The evidence tends to show that he was leaning over the dashboard talking to the driver. The derrick had been at or near this place for several days, and the plaintiff had seen it in going to and from his work. He knew they were constructing a sewer at that point. He says he did not see the derrick at the time of the accident, and did not know how close it was to the car. The derrick was on the south side of the street-car track, which track had been moved from the north side of the street on the morning of the day of the accident, thus throwing the cars nearer to the projecting timber than before. Plaintiff says that at the time of the accident he was looking out sideways, more to the east than the north; that he was looking for teams on the road belonging to his boss. His evidence tends to show that he stated on the former trial that he feared these wagons might catch him, and he was looking out for them; but on the last trial he says he was just looking to see where they were. It appears the car was moving on a down grade, and one witness says it was going as fast as he ever saw a car go. The plaintiff says the car was going "as fast as they could travel at that grade." The plaintiff had not paid his fare at the time of the accident, but says he had the money in his pocket to pay it when demanded. When speaking of the time the driver told him to replace the gate, the plaintiff was asked this question. "Do you know whether the driver and conductor were the same persons on those cars? Do they have any extra conductor or extra driver? Answer. I think this was a man that used to change off with the other driver. I mean he took charge of the car for a certain distance on the road while the other man collected fares. He then got off and went back to another car, as near as I can tell." The plaintiff says he had observed these horse cars for two months, that they carried passengers on the platform when crowded, and that on such occasions they carried passengers on the front and rear steps.

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