Simonton v. St. Louis Transit Co.

• Citation: 106 S.W. 46,207 Mo. 718
• Parties: SIMONTON v. ST. LOUIS TRANSIT CO.
• Decision Date: 10 December 1907
• Court: United States State Supreme Court of Missouri

106 S.W. 46

207 Mo. 718

SIMONTON v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

CARRIERS — INJURY TO PASSENGER — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

Where, in an action against a street railway company for injuries to a passenger received by his being knocked from the inner foot board by collision with a passenger on the inner foot board on a car going in the opposite direction, the issue as to plaintiff's contributory negligence was sharply presented by the pleadings, and there was substantial evidence introduced tending to establish plaintiff's negligence, it was proper to instruct that it was the plaintiff's duty in going upon the inner foot board to exercise such care as the position rendered reasonably necessary to prevent his being struck by passengers on the car, or by the car passing on the other track, and, if he could by standing upright thereon have avoided being struck by a passenger on or by the passing car and failed to do so, in consequence of which he was injured, he is not entitled to recover.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by W. F. Simonton against the St. Louis Transit Company to recover for personal injuries. From an order awarding plaintiff a new trial, defendant appeals. Reversed, with directions to render judgment on the verdict for defendant returned by the jury.

This cause is here by appeal on the part of the defendant from an order in the circuit court of the city of St. Louis awarding the plaintiff in this cause a new trial. This was an action for personal injuries, in which the amount of damages was laid at $10,000.

The issues presented in this cause were substantially as follows: The petition alleges that on June 17, 1903, defendant received plaintiff as a passenger on an east-bound Olive street car, gave him a transfer to the Jefferson avenue line, and received him as a passenger on one of its north-bound cars of the latter line at the place where passengers were usually received; that, the car being crowded, plaintiff was invited to ride, and did ride, on the running board of said car; that while he was thus riding, near the intersection of Olive street and Jefferson avenue, he was struck and knocked from the car, crushed and dragged by the south-bound car and its passengers, and was thereby injured. Negligence was charged as follows: "And the plaintiff avers that he was caused to be so struck and injured, first, because defendant's track, at and near where injury was so sustained, was in a defective and insecure condition; that at said place, which was just south of Olive street, the track was worn loose and defective, the joints of the rails of said north-bound track were separated and too low, and caused the car to jolt and sway, so as to bring passengers riding on said foot board into contact with passengers on the foot board of the south-bound car, and, as the car on which the plaintiff was such passenger was passing, a south-bound car of the defendant at said point, owing to said defects of said track said car, was caused by said defective condition of said track to sustain jolts and jerks, to sway laterally, and plaintiff's body to be brought into contact with the body of another passenger on defendant's south-bound car, and he was thereby caused to fall from said car, and sustain injuries as aforesaid. And plaintiff further avers that defendant's tracks at said point were constructed so near to each other as to make it dangerous for persons riding as passengers upon the running boards of passing cars, and that the defendant was, and its agents and servants in charge of said car were, negligent in failing to warn plaintiff of said danger, and thereby directly contributed to cause plaintiff's said injuries." The answer was a general denial, and contributory negligence pleaded as follows: "For further answer and defense, defendant says that plaintiff's alleged injuries were caused by his own negligence in standing upon the inner foot board of the car upon which he was riding in a position then known to plaintiff to be attended by the danger of being struck and injured when said car should be passing a south-bound car on said Jefferson avenue, and, while plaintiff was in such position, he was struck and injured when passing such south-bound car." The reply was a general denial.

Upon the trial of the cause plaintiff's evidence tended to prove that at the time he was injured, to wit, on June 17, 1903, he was employed as a painter on Berlin avenue, in the city of St. Louis. At that place he boarded an east-bound Olive street car, paid his fare, and received a transfer to the Jefferson avenue line at its intersection with the Olive street line. Defendant operated cars over double tracks on Jefferson avenue and Olive street; the west-bound Olive cars using the north track, the east-bound the south track, and the north-bound Jefferson cars using the east track, and the south-bound the west track. Late in the afternoon there was much traffic at the intersection of these streets, and persons frequently boarded north-bound Jefferson avenue cars, and were received as passengers, on the south side of Olive street rather than at the proper place on the northeast corner. Plaintiff alighted from the east-bound Olive car on the west side of Jefferson avenue at about 5:30 in the afternoon, waited for a south-bound Jefferson car to pass, and walked to the north-bound Jefferson car, then stationary, about 40 feet south of Olive. He took a position about 10 feet from the rear end of the car on the west, or inner, running board, which extended the entire length of the car. There were three or four other persons on this running board, all of whom were north of him, nearer the front of the car, and the seats in the car, as well as the outer running board, were crowded. When plaintiff was struck, he was standing on the running board, holding to the back of a seat, with the portion of his body above the hips leaning in towards the seats in the car. When his car started, he saw the south-bound car approaching, and there was a passenger, Ellerman, on its inner running board near the rear end. When the north-bound car had traveled about 25 or 30 feet, plaintiff and Ellerman came in collision with each other, Ellerman's elbow or arm striking plaintiff in the breast, and plaintiff was rolled for about 15 feet between the cars, and fell to the ground when the cars had entirely passed each other. Ellerman testified that he boarded the south-bound car while it was north of Olive street, and stood on the east, or inner, running board about the center of the car. He was facing south, but turned his face toward the car to see if there were any vacant seats. As his car was crossing Olive street, he looked south, saw the north-bound car approaching, and thereupon leaned in toward the car as much as the seated passengers would permit, in order not to be struck as the cars passed. He did not see any one on the north-bound car's running board, and did not know what...