Speaks v. Metropolitan St. Ry. Co.

• Decision Date: 04 May 1914
• Docket Number: No. 11,200.,11,200.
• Citation: 179 Mo. App. 311,166 S.W. 864
• Parties: SPEAKS v. METROPOLITAN ST. RY. CO. et al.
• Court: Missouri Court of Appeals

166 S.W. 864

179 Mo. App. 311

SPEAKS v. METROPOLITAN ST. RY. CO. et al.

No. 11,200.

Kansas City Court of Appeals. Missouri.

May 4, 1914.

1. CARRIERS (§ 287)—CARRIAGE OF PASSENGERS —NEGLIGENCE.

For a motorman of a street car to suddenly accelerate its speed after leaving a stopping place is not negligence as to one who attempted to board the car while in motion and while the gates were being closed, unless the motorman knew, or had reason to believe, that a passenger had attempted to board the car.

2. CARRIERS (§ 318)—CARRIAGE OF PASSENGERS —ACTIONS—EVIDENCE.

In an action for the death of plaintiff's husband, who fell from defendant's elevated car, which he attempted to board while it was in motion leaving the station, evidence held insufficient to show that the motorman knew of, or could have anticipated, his presence.

3. WITNESSES (§ 317)—CREDIBILITY—CONTRADICTORY STATEMENTS.

Statements by a witness irreconcilable with the remainder of his testimony cannot be taken as substantial evidence of the facts testified to.

4. APPEAL AND ERROR (§ 837) — REVIEW— TAKING CASE FROM JURY—CONSIDERATION OF EVIDENCE.

In determining whether there was any evidence which would justify a verdict for plaintiff, defendant's evidence should be considered as well as that of plaintiff.

5. CARRIERS (§ 247)—CARRIAGE OF PASSENGERS—WHO ARE PASSENGERS.

One who, at an elevated station where the street railway company maintained a sign warning persons not to board moving cars, attempted to board a car in motion, the gates of which were partly shut, is not a passenger; for, even in the case of a street railway, there must be circumstances from which can be implied an offer to be carried on the part of one desiring to become a passenger and an acceptance on the part of the carrier before the relation of passenger and carrier comes into existence.

6. CARRIERS (§ 334)—CARRIAGE OF PASSENGERS —WARNINGS.

The public are charged with notice of conspicuous warnings maintained by a street railway company at an elevated station without proof of actual knowledge.

7. CARRIERS (§ 282)—CARRIAGE OF PASSENGERS —WHO ARE PASSENGERS.

One who boards a moving street car contrary to the street railway company's express rules is not a passenger, and, though he be in a position of danger, the street railway company's servants are bound only to use ordinary care to avoid injuring him after discovering his peril.

8. CARRIERS (§ 328)—CARRIAGE OF PASSENGERS—CONTRIBUTORY NEGLIGENCE.

One who attempted at an elevated station to board a moving car, the gates of which were being closed, is guilty of contributory negligence as a matter of law, where the step of the car was within a few feet of the end of the platform, at which point the company maintained a sign warning the public against boarding moving cars.

9. CARRIERS (§ 339)—INJURY TO PASSENGER— CONTRIBUTORY NEGLIGENCE — PROXIMATE CAUSE.

Where plaintiff's intestate negligently boarded a moving car which was just leaving an elevated station, and before he could get into

a position of safety on the steps the jerk of an acceleration of speed threw him off and he was killed, his own contributory negligence was the proximate cause of the injury.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

Action by Emma Speaks against the Metropolitan Street Railway Company and others. From an order granting defendants a new trial, plaintiff appeals. Affirmed.

Langsdale & Howell, of Kansas City, for appellant. John H. Lucas, of Kansas City, for respondents.

TRIMBLE, J.

Plaintiff, as the widow of Orville Speaks, sues for damages sustained by reason of her husband's death, which, she charges, was caused by defendants' negligence. The jury found in favor of one of the defendants and for plaintiff in the sum of $2,000, presumably against the other, upon which judgment was rendered against the receivers of both. A motion for new trial was filed, which the court sustained, on the ground that under the evidence plaintiff was not entitled to recover, and that the court erred in not sustaining defendants' demurrer. Plaintiff appealed, and the correctness of the court's ruling is now the question before us.

The husband's fall and death occurred shortly after midnight on September 3, 1911, at the Mulberry street station on the elevated street railway, between Kansas City, Mo., and Kansas City, Kan. The platform and station house is about 30 feet from the ground. It is reached by a stairway leading from the ground to the south side of the station or shelter house, the station platform being on the north side thereof, so that one coming up the stairway must go through the shelter house and through a doorway opening on to the platform, and then out upon the platform before reaching the track upon which cars pass and where they stop to let off and take on passengers. At the east end of the platform there was a railing or fence extending from the southeast corner of the station house to the track, and approaching so closely and at right angles to it that a passing car comes within 8 or 9 inches of the end of the fence. From the door of the station to this guard rail or fence nearest the track is 16 feet and 10 inches. On this fence was a sign bearing these words in letters 3 inches high: "Warning! Do Not Attempt To Board Car While In Motion."

The car which deceased attempted to board was 44 feet long, and the station platform 49 feet in length. The car was therefore almost long enough to occupy the entire length of the platform when fully on it with its front end even with the guard rail or fence at the east end. And this was its proper and usual place to let off and take on passengers at that station. Different cars bound for different points and sections of the city ran over this track and passed this station, so that persons on the platform would not board a car at that point unless it was the particular car they wanted. The car which deceased attempted to board, and from which he fell and was killed, was an east-bound car.

Deceased, in company with his two brothers, came up the stairway in single file to the station house. Deceased was in front, and went through the station house out on to the platform. His brother Arthur was a step or a step and a half behind him and the other brother, William, a similar distance behind Arthur.

At the rear end of the car was a step from which a boarding passenger could reach the rear platform or vestibule, and from thence pass on into the car proper. At the edge of the rear platform or vestibule was a gate made of iron network, movable on its joints, so that it could be opened by pushing it together to one side, or could be closed by stretching it across the opening and fastening it there, thus forming a fence or barrier to an entrance upon the platform or vestibule of the car.

It is undisputed that plaintiff's husband got upon the step of the car while it was moving, and shortly before the rear vestibule or car platform had passed the fence or guard rail at the east end of the station platform, and that, just after the rear vestibule of the car passed this fence or guard rail, he fell 30 feet to the ground below, and was instantly killed.

There were three specifications of negligence in the petition, the first two of which charged the conductor of the car with negligence. These, however, could not be relied upon, as the testimony of plaintiff's own witnesses did not support either of them, and the court very properly instructed the jury that no negligence of the conductor had been shown. The conductor could not be guilty of negligence in ordering the car to start, since all the testimony shows the car was in motion and leaving the station platform before plaintiff's husband attempted to board it by getting upon the rear step of the car.

The third and remaining specification of negligence was against the motorman, charging him with starting the car forward suddenly, thereby causing plaintiff's husband to lose his balance on the step or runboard of the car and fall to the pavement below. And, since it was admitted that the car was in motion and at least three-fourths of the car had passed beyond the east edge of the elevated station platform at the time deceased stepped upon the runboard, the sudden starting of the car complained of was not its initial starting, but was a starting up of the car from a slow to a more rapid movement, and made at a time when the rear end of the car was at or near the guard rail or fence at the edge of the station platform— that is, while the car was moving away from and had almost left the station platform—at which time the motorman had a right to presume that the gate to the rear vestibule of said car was closed, according to rule, and that no one would attempt at that perilous place to get upon the car while in motion in violation of the rule of the company and the warning not to do so, conspicuously posted on the guard rail. A sudden acceleration of the speed of the car at that time would not be negligence on the part of the motorman, unless he knew, or had reason to believe, that a passenger had attempted to board, or was in the act of boarding, a car at that point and under those dangerous circumstances, and had not yet had time to get safely inside of the car.

We have examined the evidence offered in plaintiff's behalf carefully to see if there is any substantial evidence tending to show, or from which an inference could be drawn, that the motorman knew, or had reason to believe, those facts, and we must hold that there is none.

It must be borne in mind that the motorman was on the front or east end of the car, wholly unable to see plaintiff's husband at the time he got upon the rear step of the car. Even if plaintiff's husband was standing by the track on the station platform as the front end of the car, containing the motorman, passed the station house door so that the motorman saw or might have seen him, yet, as it is...