Shareman v. St. Louis Transit Co.

• Decision Date: 15 December 1903
• Citation: 103 Mo. App. 515,78 S.W. 846
• Court: Missouri Court of Appeals
• Parties: SHAREMAN v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

78 S.W. 846

103 Mo. App. 515

SHAREMAN v. ST. LOUIS TRANSIT CO.^*

Court of Appeals at St. Louis, Missouri.

December 15, 1903.

CARRIERS OF PASSENGERS—STREET RAILWAYS — PERSONAL INJURIES — COMPLAINT —SUFFICIENCY—AMENDMENT—CONTRIBUTORY NEGLIGENCE.

1. Where a complaint against a street railway company alleged that plaintiff's wife was injured in alighting from a street car "while said car was stopped, or slowed down so that its motion was imperceptible," the court properly permitted an amendment stating that the motion was "imperceptible to her," on an objection that it did not state a cause of action because the conductor was not negligent if the motion was imperceptible.

2. The complaint, having alleged that the car `stopped," was sufficient to permit evidence that the car stopped and suddenly started, thereby injuring plaintiff's wife, and therefore stated a cause of action, though it was uncertain as to whether plaintiff intended to count on an accident due to the starting of the car from a motionless state, or one due to the car reducing its speed instead of stopping.

3. Evidence that the car had stopped and then started again as plaintiff's wife was stepping off, but before she reached the street, was not a variance as that was one form in which the matter was pleaded.

4. Plaintiff claimed that his wife was injured while alighting from defendant's street car by the negligent starting of the car, and defendant claimed that, after the car had stopped a reasonable time for passengers to alight, and had started forward, plaintiff's wife attempted to alight while the car was moving. Held, that a city ordinance that street car conductors should not permit ladies to leave a car while it was in motion did not justify an instruction that if, after plaintiff's wife so attempted to alight, the conductor could, by the exercise of reasonable care, have prevented her from alighting, and failed to do so, plaintiff might recover.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by Edward Shareman against the St. Louis Transit Company for injuries to plaintiff's wife while alighting from one of defendant's street cars. Judgment for plaintiff, and defendant appeals. Reversed.

Boyle, Priest & Lehman, for appellant. A. R. Taylor, for respondent.

Statement.

GOODE, J.

While alighting from one of appellant's trolley cars, Hermina Shareman fell on the paved street, and was hurt. That accident is the foundation of this lawsuit, in which the plaintiff, as the husband of said Hermina Shareman, seeks to recover damages sustained by reason of the loss of his wife's services and society on account of the injuries she received and the expense of her medical treatment. According to the petition the wife boarded a car west of Grand avenue in St. Louis, intending to get off at the intersection of Broadway and Washington avenue. Instead of stopping at the east crossing of those streets, it is averred the car passed on and stopped or slowed down for her to alight at a point east of the crossing. The petition then proceeds: "That she, in obedience to said invitation, whilst said car was stopped or slowed down so that its motion was imperceptible, was proceeding to alight from said car when she was caused to be thrown from said car by its motion whilst she was in the act of stepping therefrom, and was thereby greatly and permanently injured upon her head, chest, body, and spine, and she also sustained a great and permanent shock to her nervous system, and was injured internally, and the bone of her forehead was crushed, and her sight injured. And the plaintiff avers that the defendant's servants in charge of said car were negligent in causing and suffering said car to be so in motion whilst his wife was so alighting from said car, which negligence directly contributed to cause said injuries to his said wife. And for another and further assignment of negligence the plaintiff avers that at the time of his wife's said injuries there was in force within the city of St. Louis an ordinance of said city by which it was provided that conductors of street cars should not permit women and children to leave street cars whilst the same were in motion. Yet the plaintiff avers that the conductor of said car was present at the time his wife was about to leave said car, and invited her to leave said car, and permitted her to do so whilst said car was in motion, which violation of said ordinance directly contributed to cause said injuries to his wife."

In an opening statement to the jury plaintiff's counsel said: "The evidence will be that she was a passenger on the car; that the car ran past its destination at Broadway and Washington avenue, and stopped about the east side of Nugent's—the building in which Nugent's place is. And it will also probably appear that they had a post there, and that that was one of their usual places to stop to discharge east-bound passengers from that car. Now, the evidence will show this: If we are precluded from introducing the wife, the evidence will show that the car did stop at this post; that while the car was stopped at that post the lady got up in her seat, and started to get off of the car. The car was one of that description in which there is both a side entrance and a rear entrance. She was leaving the car, as the evidence will be, by the side entrance. A gentleman who saw it and picked her up (rescued her from her position of peril and injury) was standing within a few feet of where this accident occurred, and saw it. The accident occurred about 9 o'clock at night. By him we will prove that the car stopped; that he saw the lady on the step; that he saw the conductor at or near her side; that while the lady was there on the step in the act of stepping off that the car started and threw her; that he went to her rescue."

Only one witness introduced by plaintiff testified concerning the facts of the accident. He swore that when the car stopped at the place where cars usually stop Mrs. Shareman started to alight; that she got as far as the lower step of the car; it started, and she fell on the street; that she attempted to alight from the middle exit, and the conductor was standing near the steps; that the starting of the car threw her. Over the objection of the defendant, plaintiff read and put in evidence this ordinance of the city of St. Louis: "Conductors shall not allow ladies or children to enter or leave cars while in motion." Several witnesses for the defendant swore the car stopped at the stopping post long enough for all passengers to get off who desired to do so, and then started; whereupon Mrs. Shareman arose from her seat, walked to the middle exit of the car, down the steps, and attempted to alight while the car was moving, and before she could be checked, though the conductor tried to check her, and called to her to wait until the car stopped, at the same time ringing the bell for a stop. The car was one with an entrance and steps in the center as well as at the ends.

For the plaintiff the court gave the following instructions, besides one in regard to the measure of damages: "(1) If the jury find from the evidence that the car in question stopped east of Broadway for the purpose of allowing passengers to alight, and that while the car was so stopped the plaintiff's wife attempted to alight therefrom, and while she was in the act of alighting the servants of defendant negligently suffered said car to start forward, and thereby caused her to fall or be thrown to the ground and injured; or if you find from the evidence that plaintiff's wife was in the act of alighting from the car while it was in motion, and that the conductor, by a high degree of care, might have seen her in such act, and might have prevented her from alighting, and failed to do so, and that because of his failure to do so she fell or was thrown from the car; and if you find from the evidence that plaintiff's wife was injured by her fall, and that plaintiff thereby lost her services and companionship and incurred expense for medicine and medical attention and nursing — then the plaintiff is entitled to recover. (2) The court instructs the jury that under the ordinance read in evidence it was the duty of the conductor of defendant's car on which plaintiff's wife was a passenger to exercise ordinary care to prevent said car from being in motion while plaintiff's wife was alighting, and such care not to permit her to alight from said car while it was in motion. (3) There is no evidence in this case to the effect that when plaintiff's wife proceeded to alight from the car it was moving so slowly as to be imperceptible to her."

The defendant asked the following instruction: "If the jury find from the evidence that defendant's car stopped to let off passengers in front of Nugent's store or place of business on Washington avenue, and then started forward, and that after said car had so started forward and was moving away from said point, plaintiff's wife attempted to alight from said car while it was so moving away, and was thereby thrown and injured, then plaintiff cannot recover in this action, and your verdict will be for the defendant." The court refused to give it in that form, and instead gave it with this modifying paragraph appended: "Unless you find from the evidence that after she so attempted to alight the conductor could, by the exercise of a high degree of care, have prevented her from alighting or leaving said car, and failed to do so."

Defendant asked four instructions which the court refused: "(1) The jury are instructed that there is no evidence in this case from which they can find that plaintiff's wife fell or was thrown from defendant's car while the motion of the car was so slow as to be imperceptible to her, and that plaintiff cannot recover in this action upon the ground that plaintiff's wife was injured while attempting to alight from the car while it was so moving. If defendant's car had...