Stoddard v. St. Louis & M. R. R. Co.

• Decision Date: 15 March 1904
• Citation: 105 Mo. App. 512,80 S.W. 33
• Court: Missouri Court of Appeals
• Parties: STODDARD v. ST. LOUIS & M. R. R. CO.<SMALL><SUP>*</SUP></SMALL>

80 S.W. 33

105 Mo. App. 512

STODDARD v. ST. LOUIS & M. R. R. CO.^*

St. Louis Court of Appeals. Missouri.

March 15, 1904.

CARRIERS—DUTIES TO PASSENGER — REASONABLE TIME TO BOARD—NEGLIGENCE—CONTRIBUTORY NEGLIGENCE—JERKS OF CAR.

1. In an action against a street railway for injuries to a passenger while boarding the car, caused by its sudden jerk, evidence held sufficient to establish a prima facie case.

2. Where a street car has stopped for the purpose of receiving passengers, it is the conductor's duty to hold the car a reasonable length of time to allow all passengers to board the car and reach a place of safety thereon before giving the signal to start, regardless of the question by whom the signal to stop was given.

3. In an action against a street railway for injuries to a passenger caused by a sudden jerk of the car, where there was no evidence to show that a reasonable time was allowed plaintiff to reach a place of safety after boarding the car before the same was started, she could not be held guilty of contributory negligence.

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

Action by Mary Stoddard against the St. Louis & Meramec River Railroad Company. From an order granting a new trial after verdict for plaintiff, plaintiff appeals. Reversed.

C. F. Schneider, for appellant. McKeighan & Watts and R. A. Holland, Jr., for respondent.

BLAND, P. J.

Plaintiff, while a passenger thereon, was injured by falling upon the rear platform of one of defendant's street railway cars. The suit was to recover damages for injuries to her person caused by the fall. She recovered a verdict in the court below, which, on motion of defendant, was set aside, and a new trial granted. From the order granting the new trial, plaintiff appealed. The ground assigned by the trial judge for setting aside the verdict is that the court erred in refusing defendant's instruction, offered at the close of plaintiff's evidence, to the effect that on her own showing she was not entitled to recover.

The negligence alleged in the petition is that, after defendant stopped its car to receive passengers, the plaintiff proceeded to board the car as a passenger, "but, before she was able or had time to safely and fully board said car, and while she was still upon the rear platform thereof, and in the act of entering said car, the said car suddenly jerked and lurched forward, thereby throwing the plaintiff violently and with great force against the rear end and floor of the platform of said car, causing her to be seriously hurt and injured in and about her back, spine, limbs, and body; that said injuries were caused by the defendant's agents, employés, and servants carelessly and negligently causing and permitting said car suddenly and in the manner aforesaid to start, jerk, and lurch forward before plaintiff had safely and fully entered said car, and before she had reasonable time to safely and fully enter said car."

Plaintiff located herself on Old Manchester Road, in the city of St. Louis, and testified: "I walked into Arthur avenue and Old Manchester Road. As I got that far, that was two blocks from Sutton avenue, and then I just got in time. There was a car coming, and I went across the road. Others were there waiting for the car, and the car stopped, and they got on the car ahead of me, and then I got on the car, and as I got on the first step the car started up, and as I got on the rear platform it gave a jerk and threw me back against the rear end of the car. Q. Just as you were in the act of getting in the car? A. Just as I was facing— Q. (interrupting). What happened then? When it jerked back, what did it do? A. I fell to the floor, and I got hurt, and there was a couple of men, I believe—I know they carried me in the car." On cross-examination her evidence in respect to the fall is as follows: "Q. You fell after you got upon the platform? A. Yes, sir. Q. Just as you were going in the door? A. Yes, sir; as I got upon the platform. Q. So the starting of the car didn't make you fall? It was this jerk afterward? A. The jerk of the car throwed me. Q. I say it was not the starting of the car when you were on the step that made you fall? It was the jerk after you got upon the platform? A. It was the jerk. Q. After you got on the platform? A. Yes, sir; after I got on the platform. I was upon the platform. Q. So you got on the first step, and then got on the platform, and you walked to the door, and before you entered the door you fell? Is that right? A. I didn't get in the car at all. Q. No; I didn't say you did. If you will listen carefully, there will be no mistake about it. You got on the first step, and then on the platform? A. Yes, sir. Q. Then you walked to the door? A. Well, I just turned around to attempt to go in the door, and the car gave a sudden jerk and throwed me down. Q. What sort of jerk was this, madam? A. Well, I can't explain it. It was the jerk that throwed me. Q. Was it the movement that ordinarily takes place when a car starts? A. Oh, it was a sudden jerk. It was more than that. Q. You have stood in the cars, have you not, when they were moving and stopping, and everything? A. Yes, sir; I have. Q. You have noticed the necessity, when cars are starting and stopping, of holding onto a strap, or holding on the edge of a seat, have you not? A. Yes, sir. Q. Whenever a car starts, it is apt to give some sort of jerk, is it not? A. Well, I don't know. Sometimes it is. I have noticed it a good many times when I have been out on them. Q. I mean generally when the cars start, if you are standing up, it is necessary to hold onto something or somebody to keep from upsetting or losing your balance? A. It ain't all the time. Q. I didn't say all the time. I said generally. A. Well. Q. Is not that so? A. It may be. I couldn't give you a decided answer about that. Q. Was not that movement which you say caused you to fall just such a movement as generally takes place when a car starts? A. It was more of a jerk than that, or it would not have thrown me back. Q. Can't you tell us what sort of jerk it was? A. It was jerk enough to throw me back. Q. Three or four men got in ahead of you? A. I believe they did. Some men got in. Q. Did it throw any of them down? A. I don't know. Q. If they had fallen, you would have seen it? A. I don't know. I was not looking after them any. Q. You didn't see anybody else fall? A. I didn't see anybody else fall. Q. Are you perfectly sure that you didn't step on your skirt and trip there? A. No, sir; I didn't step on my skirt. Q. You are sure of that, are you? A. Yes, sir; I am sure of that. Q. Now, when you fell, did you fall down on the platform, in a heap, or did you fall against the rear dashboard of the car? A. No; I fell back against the dashboard. I got a jerk enough to throw me back against the dashboard. Then I fell on the floor. * * * Q. Did you see anybody hail the car? A. There was a man hailed it. Q. Were you there before he hailed the car? A. Yes, sir; I was there. Q. Where were you standing, with reference to the man? A. Back of the man. That's why I expect he got on before I did. * * * A. Two or three, or maybe four. Q. Did they get on ahead of you? A. Yes, sir; they did. Q. You were the last to get on? A. Yes, sir; I believe I was. I didn't see anybody get on after me. Q. Now, did you have hold of anything with either of your hands at the time that you were jerked back? A. Well, not at that time. When I first started to get on the car, I caught hold of that bar to get on the car. The car started when I was on the first step. Then when I got on the platform, I aimed to get hold of something, but I got jerked. That threw me back. Q. Were you reaching forward at the time you got jerked back? A. I believe I was, for I had turned around to go in the car."

William Vaughn, a witness for plaintiff, testified as follows: "A. I was not looking out the window; that is, the window was closed. I was merely with my head turned. The conductor was up about the center part of the car. I am not positive whether he was collecting fares or not. Anyway, he gave a signal, and as he gave the signal I saw that she was not quite on, or hadn't got a footing. I turned around this way then to look out the door. I could see she fell down, because I couldn't see her above the window line there in the back. A gentleman rushed from— I guess he sat about five or six seats from the back, on the north side. He rushed out there, and him and another gentleman brought the lady in, and sat her right in the next seat, right in front of me. Q. What was the movement of the car at that time? A. Well, it was just like ordinarily when they give a signal. The car will kind of lurch a little that way—enough, of course, if a person is not holding, he will be thrown, even standing in the car, holding. Q. This car lurched, did it? A. Yes, sir. Q. Did you feel that lurch? A. About like that (indicating). Of course, sitting in a chair that way, and looking around, I could feel it too. Q. You felt it? A. Yes; I could feel the lurch a little." On cross-examination he testified as follows: "Q. Well, just one or two questions. This lady, Mrs. Stoddard, says that she had got upon the platform and got to the...