Spencer v. St. Louis Transit Company

• Court: Missouri Court of Appeals
• Writing for the Court: BLAND, P. J.
• Citation: Spencer v. St. Louis Transit Company, 86 S.W. 593, 111 Mo.App. 653 (Mo. App. 1905)
• Decision Date: 04 April 1905
• Parties: SPENCER, Respondent, v. St. LOUIS TRANSIT COMPANY, Appellant

86 S.W. 593

111 Mo.App. 653

SPENCER, Respondent, v. St. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 4, 1905

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. Jas. R. Kinealy Judge.

REVERSED AND REMANDED.

STATEMENT.

The plaintiff took passage on one of defendant's street cars in the city of St. Louis, paid his fare and received from the conductor a transfer ticket, authorizing him to become a passenger of one of defendant's Olive street cars travelling east. For the purpose of boarding an Olive street car plaintiff went to the intersection of Delmar and DeBaliviere avenues and there took a position on the defendant's platform, from which passengers were received on Olive street cars. The petition alleges that after plaintiff reached the platform, he "signalled the motorman and agent of defendant of its first eastbound car and in response to said signal the car slowed up at said place to receive plaintiff and other passengers, and so halted that plaintiff could have safely boarded the same, and thereupon plaintiff, with the knowledge and consent of the defendant, its agents and servants in charge of said car, and upon their invitation stepped aboard the step of said car, and while in the act of boarding said car, with reasonable expedition, it carelessly and negligently was started forward with a sudden, violent and unusual lurch and jerk by defendant and its agents, and before plaintiff had a reasonable time to fully and safely board said car and before he had so boarded it, so that plaintiff was, in consequence of such careless and negligent starting of said car, thrown with great force and violence onto and upon the ground of said public street, whereby his body was greatly bruised and otherwise seriously and permanently injured, and his right leg was fractured, and his right ankle was dislocated, his nervous system was greatly damaged and shocked, from which shock and the injuries heretofore complained of he was made ill and confined to his bed ever since said accident, and he has thereby lost the earnings of his labor to the amount of $ 300.

The answer was a general denial and the following affirmative defense:

"And for a further answer and defense defendant says that plaintiff's alleged injuries were caused by his own negligence in attempting to board a moving car, which had not stopped for the reception of passengers, and without invitation from those in charge of the car so to do."

Plaintiff testified that he is thirty-seven years old, married, division chief of the Western Union Telegraph Company, and lives in St. Louis county five miles beyond the city limits. On the morning of February 15, 1902, at about seven o'clock, plaintiff boarded one of the defendant's cars near his home, intending to come down town to his office. He paid his fare and left the car at DeBaliviere and Delmar avenues, with a transfer ticket to the Oliver street line at that point, and attempted to board a through Olive street car. Plaintiff testified that the street car company discharged the passengers at what they called "the shed," and passengers were obliged to walk across DeBaliviere avenue to a platform, which is a distance of about two hundred feet.

"Q. Where is the place where you got on the car going east; what crossing is that? A. It is on the corner of Delmar and DeBaliviere.

"Q, On the corner of Delmar and DeBaliviere, as you call it--which one of the four crossings on which passengers embark to go down town? A. The southeast.

"Q. Tell the gentlemen of the jury where you came from, from what point to that crossing? A. I walked across DeBaliviere avenue, which I think is about two hundred feet to the platform.

"Q. Was that or was it not the usual place where passengers get on to come down town? A. That is where we always take the Olive street car.

"Q. Now, tell what occurred? A. I should judge there were seven or eight passengers beside myself waiting at this platform, all waiting for a car, and an eastbound car came along, and I happened to be standing furthermost west on this platform, and as the car came along I saw the motorman apply the brake and throw the power off; I should judge that the car was running at the speed at which a man walks, at the time that I got on the car; at the time I boarded the car, or shortly afterwards, the power was thrown on suddenly, and I lost my hold on the handle.

"Q. In order to make this more plain, as you got on board the car, tell the jury what you took hold of; the side handles or what? A. The upright handles on the side.

"Q. Were you on the lower step? A. I was on the step. I boarded the car but couldn't keep my hold.

"Q. After this sudden movement you speak of, then what happened? A. I made an effort to hold on but couldn't do it; the next thing I remember was lying in the street."

Plaintiff testified that he fell face downward, on his right ankle, breaking his right leg at or near the ankle bone, as a consequence of which he was laid up and was unable to resume his work until April following; that at the time he was injured he was earning twenty-five dollars per week. Plaintiff further testified that he suffered intense pain for the first two or three weeks after the injury, and still suffers pain from the injury to his ankle, which has to be strengthened by a rubber support; that his foot is enlarged and he walks with difficulty. Plaintiff also testified that when the motorman checked the speed of the car he understood from his action that he and the other twelve or fourteen persons waiting to take passage on the car were invited to get aboard.

The following appears in plaintiff's cross-examination:

"Plaintiff admitted signing the following statement, but said that he did not read it, nor was it read to him, nor did he know what it contained, but said that it was taken about half an hour after the accident, while he was suffering great pain, and that the statement was made largely from statements made by plaintiff's father to defendant's claim agent:

"'I walked from the office to the corner preparatory to getting on an Olive street car; as the front end of the car passed me it was going at such rate of speed I could have gotten on, but as the rear platform came up the motorman applied the current and when I took hold I was thrown clear from the car, breaking my right leg at the ankle. There were several other persons waiting for the car.'"

Etta M. Devore testified that she was present with plaintiff and others waiting for a car to take them down town, "and a car came from the west; the car slackened as it came towards us and Mr. Spencer boarded the car, he got partly on before it--then the car started suddenly and Mr. Spencer fell off." Witness also testified that the car was not running very fast when it came up and that it ran about a car length before plaintiff was throw off.

Trusten P. Kidd testified that he was present for the purpose of boarding a car when plaintiff was injured; that plaintiff was at the far end of the platform, west of the crowd, and was the first and only one of the company who attempted to board the car.

"Q. Now, as you noticed it coming up, what did you observe in regard to the motorman's action? A. There was all the evidence that he was going to stop for the passengers waiting.

"Q. What did he do? A. He threw the power off when he came up to this switch--led us to believe he was going to stop at that point, and Spencer was standing the first one nearest the car coming.

"Q. Did he put on the brake? A. He did.

"Q. How slow was it going when Spencer got aboard? A. Oh, a walk, a fast walk.

"Q. A fast walk of a man? A. Yes, sir.

"Q. Did you see him get on? A. Yes, sir.

"Q. Where did he take hold; did you notice? A. The handle of the car.

"Q. The handle of the car platform? A. The handle of the car platform.

"Q. After he got aboard then what happened? A. The car gave off power--all the evidence of giving off power so hard he rushed forward with it.

"Q. Did it rush forward? A. Yes, sir.

"Q. What was the effect of that on Mr. Spencer? A. He was thrown off.

"Q. Was he still standing on the lower step at the time he was thrown off? A. Hadn't got up further that the lower step."

The testimony of several other of the persons present and waiting to take a car is substantially the same as that of Mr. Kidd. One other of the witnesses, C. A. Mosley, admitted that he signed the following statement:

"Clerk, Browning and King, residence, county, taken at Browning and King's on the fifteenth of February, 1902; in the case of Frank Spencer, damaged or injured at DeBaliviere and Delmar, on the fifteenth of February, 1902. Twelve or fifteen people standing on corner waiting for car. I did not see motorman motion crowd to wait for next car; car was running fast and too fast for me to get on, and did not slow up. This man caught hold of rear platform and was thrown and dragged about twenty feet; car ran nearly to next corner before it stopped. Maryland car was following close behind. Through car was what he wanted."

Witness testified that he did not read the statement before signing it; that he told the company's agent what to write, and part of what he wrote was correct and part incorrect.

Dr. I. H. Bird testified, in respect to plaintiff's injuries, as follows:

"Q. Now, doctor, tell the jury in as simple a form as you can without being very technical, just what sort of fracture he suffered? A. That is what we know as a 'Potts fracture,' sometimes called 'railroad fracture,' it is a fracture that is not always alike; sometimes a fracture of a bone, sometimes a ligament, and sometimes both.

"Q. What bones or ligament were broken in Spencer's case? A. The small bone...