Stumpf v. United Rys. Co.

• Decision Date: 08 February 1921
• Docket Number: No. 16403.,16403.
• Citation: 227 S.W. 852
• Parties: STUMPF v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

227 S.W. 852

STUMPF v. UNITED RYS. CO. OF ST. LOUIS.

No. 16403.

St. Louie Court of Appeals. Missouri.

February 8, 1921.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

"Not to be officially published."

Action by Beulah Stumpf, a minor, by Jacob Stumpf, next friend, against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Charles W. Bates and T. B. Francis, both of St. Louis, for appellant.

O. J. Mudd and Ben Philipson, both of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff while attempting to alight from a street car operated by defendant, a common carrier, in the city of St. Louis, and alleged to have been occasioned by defendant's negligence. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $2,800, from which judgment the defendant prosecutes this appeal.

The amended petition, upon which the cause was tried, alleges that while plaintiff was a passenger upon one of defendant's street cars, defendant caused the car to come to a stop at the intersection of two named streets, and caused the front or exit door of the car to be opened, for the purpose of allowing plaintiff and other passengers to alight; that while plaintiff was proceeding to leave the car, but before she had a reasonable opportunity to alight therefrom, defendant's servants in charge thereof negligently caused the car to be "suddenly started up," while plaintiff was in the act of so alighting, and negligently "caused the door to be suddenly closed over the exit from the said car"; that by reason of the negligent starting of the car plaintiff was thrown to the street, and because of the negligent closing of the door her dress was caught in the door, and she was dragged by the car. And It is averred that by reason of defendant's alleged negligent acts plaintiff suffered serious injuries described in the petition.

The answer is a general denial, coupled with a plea that whatever injuries plaintiff may have sustained, if any, were caused by her own negligence in attempting to alight from a moving street car.

Plaintiff testified that she was a passenger on the car, and that the car stopped at the eighteenth street crossing; that while the car was so stopped she attempted to leave it by the front door, and while she was in the act of alighting therefrom the motorman suddenly started the car forward, causing her to fall; and that he also closed the door, catching her dress therein, and causing her to be dragged.

Plaintiff produced one eyewitness to the casualty, who testified that he was on the street and saw plaintiff as she was leaving the car. He said:

"I would say her last step as she was getting off, why, the door closed and caught her dress, and dragged her."

On cross-examination he said that when he saw plaintiff "going out the door," the car was not moving, but "about the time" she made the last step the car started to move.

In behalf of defendant the motorman of the car testified that he stopped at the crossing mentioned, and after about 20 or 25 passengers had left the car by the front door he received a signal from the conductor to proceed; that he looked at the door, and "saw there was nobody there to get off," and then looked "backward to see whether there was any more to get off." He said:

"There was no one to get off, and I started the car with my left hand and closed the door with my right hand, and looked forward."

And he testified that shortly thereafter somebody jerked the "door lever" out of his hand, and, upon looking around, he saw plaintiff "jumping through the door sideways." He said:

"The door was half closed when she grabbed this out of my hand. The car was in motion at the time."

The motorman's version of what occurred. is corroborated by the testimony of three witnesses who were passengers on the front platform of the car, and by that of two passengers within the car. The testimony of these witnesses, in substance, tends to show that after the car had started into motion, and while the motorman was in the act of closing the door by means of a lever which he operated with his right hand, and:while the door was still partly open, plaintiff rushed forward, and passed "sideways" through the door.

Five instructions offered by plaintiff were given. The first of these predicates a recovery upon a finding that defendant failed to exercise the "highest practical care, diligence, and foresight" in the management of its car so as to carry plaintiff safely as a passenger, "by starting up the car when plaintiff was in the act of alighting" therefrom, and before she had been allowed a reasonable opportunity to alight in safety.

Plaintiff's instruction No. 2, which purports to cover the entire case, and directed a verdict, predicates liability upon a finding that the car had been "stopped at the usual stopping place for passengers to leave the car"; that "upon the car being so stopped," with the exit door open, plaintiff attempted to leave the car through said door, "while the same was standing still," and that before she had been allowed a reasonable opportunity to leave the car in safety defendant's employés in charge thereof started the same into motion, causing her to fall.

Because of the attack made upon plaintiff's third instruction we set it out in full, as follows:

"The court instructs the jury that the defendant, by way of answer to the cause of action on trial before you, sets up for a defense that the plaintiff was guilty of negligence in attempting to leave the car while the same was in motion. And the court instructs you as, to this defense that, although negligence on plaintiff's part, in attempting to alight from a moving car, would prevent a recovery by plaintiff for injuries caused or contributed to by such negligence on her part, yet it is not necessarily negligent for an active, healthy, young woman of plaintiff's age, provided you find plaintiff was at the time an active, healthy, young woman, to attempt to get off a street car while moving very slowly; and so, even though you should find and believe from the testimony that plaintiff attempted to get off the car while the same was in motion, yet, if you find that the car at the time when plaintiff attempted to alight was moving so slowly that the motion of the car would not endanger her safety in so attempting to alight, and you believe and find from the evidence that the plaintiff in attempting to alight exercised such care and prudence, as you believe a person of ordinary prudence would use under the like circumstances; and then you further find and believe from the evidence that a person of plaintiff's age and physical condition, as...