Shanahan v. St. Louis Transit Co.

• Decision Date: 15 November 1904
• Citation: 109 Mo. App. 228,83 S.W. 783
• Court: Missouri Court of Appeals
• Parties: SHANAHAN v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

83 S.W. 783

109 Mo. App. 228

SHANAHAN v. ST. LOUIS TRANSIT CO.^*

St. Louis Court of Appeals. Missouri.

November 15, 1904.

CARRIERS — INJURY TO PASSENGER — STREET CARS — PREMATURE START — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — LAST CLEAR CHANCE — DAMAGES — LOSS OF TIME — INSTRUCTIONS.

1. A street car company is bound to stop a car for a period reasonably sufficient to afford passengers an opportunity to board it, in the exercise of reasonable diligence on their part, with due regard to age and physical infirmity.

2. In an action for injuries to a passenger while attempting to board a street car by the premature starting thereof, evidence as to plaintiff's acts in attempting to board the car held to require a submission of the question of plaintiff's contributory negligence to the jury.

3. Where a street car was started before plaintiff succeeded in boarding it, whereupon the conductor seized plaintiff by the arm in an endeavor to drag him on the car, which failed, plaintiff's direction to the conductor to release him as the speed of the car increased, and after the conductor had failed to stop the car as plaintiff requested him to do, was insufficient to preclude a recovery for injuries sustained by plaintiff in falling from the car.

4. An instruction, in an action for injuries to a passenger, was not objectionable as eliminating the question of plaintiff's contributory negligence, where the charge as a whole was not subject to such objection.

5. Specifications of negligence, in an action for injuries to a passenger while boarding a street car, in that the car was started before plaintiff was afforded a reasonable opportunity to board the same, and that it was not stopped subsequently to avert the peril impending in plaintiff's jeopardous situation, were not inconsistent.

6. Where plaintiff was injured by the premature starting of a street car while attempting to board it, an instruction that if the jury found that, after seeing plaintiff's dangerous position, the conductor could have stopped the car, by

signaling to the motorman, in time to have prevented the injury, and failed to exercise ordinary care so to do, which produced it, plaintiff was entitled to recover, etc., was proper.

7. Plaintiff's evidence, in an action for injuries to him while attempting to board a street car, that the conductor did not release his hold on plaintiff's arm until he commanded him to do so, was binding on plaintiff as an admission.

8. A requested instruction that plaintiff had admitted that defendant's conductor had not released his hold on plaintiff's arm until plaintiff commanded him to do so, and that if from the evidence the jury believed that plaintiff's fall from the car and injury were directly due to, or were directly contributed to by, plaintiff's conduct in causing the conductor to release his hold, etc., plaintiff could not recover, regardless of the negligence of defendant's servant, was properly refused as a comment on the evidence, and as emphasizing certain parts of plaintiff's testimony.

9. Where, in an action for injuries to a passenger, it appeared that plaintiff had retired from business, and that during his disability plaintiff's son had collected his rents, etc., without compensation, plaintiff was not entitled to recover for loss of time.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by John Shanahan against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed on condition.

Boyle, Priest & Lehman, for appellant. Thomas Norris, for respondent.

REYBURN, J.

The plaintiff, about 4 o'clock in the afternoon in April, 1903, attempted to get on a street car of defendant. Prior, while awaiting the arrival of a car traveling eastwardly, the direction in which he wished to be transported, a woman and child, also prospective passengers, appeared, and, when the car halted in response to their signals, plaintiff caught the hand rail with his right hand, but permitted the woman and child to precede him on the car. The woman, with the assistance of the conductor, first placed the child on the car, and then followed, and plaintiff started to complete his ascent to the platform or steps, but before he mounted them the conductor rang the bell, and the car moved forward, with plaintiff clinging by one hand to the rail. The conductor then sought to help him into the car by catching hold of his left arm, which effort failed, and plaintiff, having first appealed to the conductor to signal the motorman to stop the car, which he did not do, ordered the conductor to let him go, and, with the increasing velocity of the moving car, the plaintiff was forced to release his grasp of the hand rail, and was thrown to the ground and sustained severe injuries. At the time of the occurrence plaintiff was about 73 years of age, of great size and weight, exceeding 180 pounds, and he was in the habit of carrying a cane, which was grasped then in his left hand. After a lengthy and apparently successful career he had retired from active commercial life, and busied himself with his own affairs — the care and management of his property. The assignments of negligence specify carelessness in defendant's agents and servants in starting the car before plaintiff had a reasonable time or opportunity to get on the car after it had stopped to receive passengers, and in not stopping the car after it had started, so as to prevent the injuries that were imminent and perceptible to such agents and...