Shepherd v. St. Louis Transit Co.

• Decision Date: 06 June 1905
• Citation: 87 S.W. 1007,189 Mo. 362
• Parties: SHEPHERD v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

87 S.W. 1007

189 Mo. 362

SHEPHERD v.ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 2.

June 6, 1905.

MASTER AND SERVANT — INJURIES TO SERVANT — DEFECTIVE APPLIANCES — ASSUMED RISK — STATEMENT AGAINST INTEREST — WEIGHT — INSTRUCTIONS — CURING ERROR.

1. In an action for injuries to a street car conductor caused by a defective step, an instruction that plaintiff must show "that he did not know of the broken and unsafe condition" of the step, and that the same was not obvious to plaintiff in the exercise of reasonable care, was erroneous, as plaintiff did not assume the risk of the defect, though he had knowledge thereof, unless it was so obviously dangerous that ordinary prudence would have dictated that he refuse to use it.

2. Such error was not cured by a subsequent disconnected instruction correctly declaring the law, the instructions being conflicting and misleading.

3. An instruction that any statements made by plaintiff either during the trial or elsewhere, which were against his interest, were to be taken and treated by the jury as "absolutely true," was erroneous, such statements not being conclusive of the facts alleged to have been admitted.

Appeal from St. Louis Circuit Court; John A. Talty, Judge.

Action by Frank H. Shepherd against the St. Louis Transit Company.From an order sustaining plaintiff's motion for a new trial, defendant appeals.Affirmed.

Boyle, Priest & Lehmann and Geo. W. Easley, for appellant.Ernest E. Wood, for respondent.

FOX, J.

This cause comes to this court by appeal from an order of the trial court sustaining motion for new trial.The cause of action in this cause is thus stated in the petition: "Plaintiff, for his cause of action against the defendant, says: (1) That the said defendant is a corporation by virtue of the laws of the state of Missouri, and that at all times herein mentioned said defendant was, and now is, engaged in operating certain lines of street cars on the various streets and thoroughfares of the city of St. Louis, state of Missouri.That on the 15th day of January, 1902, this plaintiff was regularly in the employ of the said defendant corporation as a street car conductor.(2) That during the afternoon of the said 15th day of January, 1902, the defendant corporation, by its agents and servants, delivered to this plaintiff, for use in his said employment, a car owned by the said defendant corporation.That one of the steps on said car was worn with use, and was in a broken and unsafe condition; and that the condition of said step was known to the defendant corporation, or by reasonable inspection could have been known to it.That on said last-named day, during the course of a run made by the plaintiff with the said defective car, this plaintiff had occasion, in pursuance of his duties in said employment, at or near the corner of Prairie avenue and Hebert street, to step from the ground onto the said defective step.That thereupon the said defective step gave way with him, throwing this plaintiff violently to the ground, and causing the wheels of the car to run over his left hand, crushing it, and rendering it useless to the plaintiff, to his damage in the sum of seven thousand dollars ($7,000.00).(3) That the said car furnished to this plaintiff by the said defendant corporation was in a dangerous and unsafe condition on account of the negligence of said corporation, its agents and servants, as above set forth, and that on account of the said negligence of the defendant corporation, and not through or on account of any negligence on his part, this plaintiff sustained the aforesaid injury.Wherefore plaintiff prays judgment against the defendant corporation in the sum of seven thousand dollars and his costs."The answer was a general denial and plea of contributory negligence.As this is an appeal from an order sustaining motion for new trial, and the record discloses that the action of the court is predicated solely upon the ground that the instructions were erroneous, we see no reason for burdening this opinion with a statement of the evidence, and it is sufficient for the purpose of disposing of the legal propositions involved, to say that there was testimony by both parties tending to establish the issues presented in the pleadings.

At the close of the evidence the court instructed the jury as follows:

"(1) The jurors are instructed that if you believe and find from the evidence in this case that on or about the 15th day of January, 1902, the defendant was a corporation, engaged in operating street cars over street railway tracks in the city of St. Louis, and that on or about said date the plaintiff was in defendant's employ as a street car conductor; and if you further believe and find from the evidence that while in the course of his said employment, and while at or near the corner of Prairie avenue and Hebert street in said city, on or about said date, the plaintiff attempted to board the street car he was operating and working upon as such conductor; and if you further believe and find from the evidence that one of the steps on said car was worn with use, and broken, and in an unsafe condition, and that in attempting to mount said car plaintiff stepped upon said step, and that by reason of its broken and worn and unsafe condition, if you find from the evidence it was in a broken and worn and unsafe condition, plaintiff was thrown to the ground, and thereby received the injuries sued for; and if you further believe and find from the evidence that the defendant knew, or by the exercise of reasonable care and inspection might have known, a sufficient length of time before the accident to have repaired the same or prevented the accident, of the said condition of said step (if you believe from the evidence it was in said condition at said time); and if you further believe and find from the evidence that plaintiff at the time was exercising reasonable care, and was not guilty of any negligence directly contributing to his said injuries — then you will find a verdict for the plaintiff, and assess his damages at such sum as you believe and find from the evidence will be a fair and reasonable compensation to him for his said injuries; and in estimating his damages you make take into consideration the physical suffering and mental anguish, if any, he has endured as a direct result of said injuries, but in no event should your verdict be for more than seven thousand dollars, that being the amount sued for.

"(2) Before the plaintiff can recover in this action he must show by a preponderance of the evidence each of the following facts: First.That the defendant furnished to plaintiff a car, the step of which was broken, worn with use, and in an unsafe condition.Second.That the defendant knew, or by the exercise of reasonable care could have known, that the step of said car was broken, worn with use, and in an unsafe condition, and that the plaintiff did not know of the broken and unsafe condition of said step, and that the alleged condition of the same was not open and obvious to the plaintiff, in the exercise of reasonable care upon his part for his own safety or that of the passengers carried on said car while he was conducting the same.Third.That while stepping from the ground onto the step, the step gave way with plaintiff, throwing plaintiff to the ground, and causing the car to run over his hand and injuring him.The burden of proving each of these facts by the preponderance or greater weight of the evidence rests upon the plaintiff throughout the whole case, and the jury are not to make any presumptions of negligence against the defendant, nor are they to determine any one of these questions by mere speculation, conjecture, or guessing as to whether the step was out of order, or the knowledge of either party in regard thereto, or as to whether the step gave way, or whether such giving way, if you find it did give way, was the cause of the plaintiff's alleged injuries.These questions are to be determined by the jury solely from the evidence in the case; and if, upon a full and fair consideration of all the facts and circumstances in evidence, you find either that the step was not broken and in an unsafe condition, or that plaintiff knew of its condition, or might, if he had used ordinary care for his own protection or that of the passengers carried on said car, have known of it, or that the defendant did not know of its condition, and could not have...