Sullivan v. Jefferson Ave. Ry. Co.

• Decision Date: 03 March 1896
• Citation: 34 S.W. 566,133 Mo. 1
• Parties: SULLIVAN v. JEFFERSON AVE. RY. CO.
• Court: Missouri Supreme Court

34 S.W. 566

133 Mo. 1

SULLIVAN v. JEFFERSON AVE. RY. CO.

Supreme Court of Missouri, Division No. 2.

March 3, 1896.

CARRIERS — INJURY TO PASSENGER — WITNESS — STREET-CAR COMPANY — DEGREE OF CARE — NEGLIGENCE — TRIAL.

1. A witness may be impeached by an affidavit previously made by her containing statements contradictory to evidence given on the stand.

2. A witness sought to be impeached by an affidavit previously made may explain an alleged alteration of it.

3. Street-car companies, in carrying passengers, are bound to exercise the highest degree of

practicable care and diligence which prudent men would observe in a like business and under similar circumstances.

4. Plaintiff was a passenger on one of defendant's summer street cars. Defendant's driver acted also as conductor. A fellow passenger inadvertently threw a lighted match on plaintiff's dress, which blazed up suddenly. The driver immediately stopped the car, but before he could render any assistance to plaintiff she had left the car from the rear door, and was severely burned before the flames were extinguished. Held, that defendant was not chargeable with negligence.

5. A judgment on a verdict correctly found, notwithstanding error in refusing an instruction requested by the adverse party, will not be reversed.

Appeal from St. Louis circuit court; James W. Withrow, Judge.

Action by Josephine Sullivan against the Jefferson Avenue Railway Company for personal injuries. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

F. & Ed. L. Gottschalk, for appellant. E. S. Robert, for respondent.

GANTT, J.

The defendant is a street-car company operating its cars on Jefferson avenue in the city of St. Louis. On the 9th of August, 1891, the plaintiff, a young lady, with a companion, another young lady, Miss Barrett, was a passenger on one of defendant's cars in charge of Henry Reid, the driver. The car was what is known as a "bob-tail" horse summer car, and the driver fills the place of both conductor and driver. The plaintiff and her friend were sitting on the back seat, and the car was moving north. As the car reached a point near the northern line of Washington avenue, which it crosses almost at right angles, Henry Voss, another passenger, sitting opposite plaintiff, lit a cigarette, and attempted to throw the match out of the back door. Plaintiff was dressed in a light gauzy summer dress, and in a moment after Voss threw the match plaintiff's dress was discovered on fire. She screamed, as did the other ladies, four or five in number, and ran to the front door, and told the driver she was afire. He immediately stopped his car. In the meantime the passengers had all left the car, and plaintiff ran off screaming. Mr. J. F. Robinson, living at No. 700 Jefferson avenue, happened to be looking out of his window, and saw plaintiff's dress burning, and with great presence of mind took a quilt, and ran to her rescue, and smothered the flames as she ran up the steps of a hospital near by. Her hands and arms and side were severely burned, so much so that her left hand was crippled and rendered useless. She sues the company for the negligence of its driver, the gravamen of her complaint being contained in this allegation of her petition: "That said defendant's car was under the charge and control of its agent. That while this plaintiff was sitting in said car, to be carried to the point of destination on Jefferson avenue between Washington and Lucas avenue, her dress was set on fire on said car, and, the same threatening to burn her to death, she, being then on fire, applied to said agent and driver in charge of and managing said car for protection and assistance, which protection and assistance said defendant was by law and by its undertaking bound and obliged to render and extend to her; but that said defendant, by its said agent and driver, refused to protect or assist her, but, on the contrary, said agent and driver rudely, wrongfully, and unlawfully pushed her away, and compelled her to jump from the car, all on fire, as she then was. That the flame could easily have been extinguished at the time she applied to said driver for such protection and assistance, but by his refusal to do so, and his acts in the premises, she was awfully burned, all about her body," etc. The case was tried to a jury, and a verdict returned for the defendant, and judgment rendered accordingly. To reverse the judgment plaintiff assigns two errors: First, in admitting in evidence an affidavit made by Miss Barrett, a witness for plaintiff, to contradict her evidence on trial; second, error in the instructions. Of these, in their order.

1. When this affidavit was offered, counsel waived all objections to it save that "the affidavit was taken by an agent of defendant without notice to plaintiff." Russell v. Glasser, 93 Mo. 353, 6 S. W. 362. The witness did not admit she had made the statement shown her in her affidavit. She intimated very plainly that her statement had not been written down as she gave it. Nothing less than an unequivocal admission that the witness made the very statement attributed to him or her will deprive the other party of proving the statement. Peck v. Ritchey, 66 Mo. 114. That a witness may be impeached by contradictory statements made out of court will not certainly be controverted at this late day. It is elemental, and surely the fact that the contradictory statement is under the solemnity of an oath does not lessen its value for impeachment. The mere fact that the sworn statement was procured by an agent of the party offering it does not affect its competency. If it be claimed that any fraud was perpetrated in suppressing a part of the statement, or that a statement is inserted which the witness insists he did not make, he is entitled to explain it, and the whole matter is left to the trier of fact, whether court or jury, to weigh the credibility of the witness, but it does not affect the admissibility of the statement. There is no merit in this assignment. Bogie v. Nolan, 96 Mo. 85, 9 S. W. 14, overruling Priest v. Way, 87 Mo. 16.

2. That the court erred in not instructing the jury as to the proper degree of care required of a carrier of passengers we think is true. While not insurers, street-car companies are carriers of passengers, and are held to that high degree of care that is demanded of other railways in carrying passengers; that is to say, the highest degree of practicable care and diligence which prudent men would observe in a like business, and under similar circumstances. Jackson v. Railway Co., 118 Mo. 199, 24 S. W. 192; Clark v. Railroad Co., 127 Mo. 197, 29 S. W. 1013; Waller v. Railway Co., 83 Mo. 608; Furnish v. Railway Co., 102 Mo. 438, 13 S. W. 1044. But, conceding this, how could the jury have reached a different conclusion? Plaintiff's counsel admit that the starting of the fire was in no manner attributable to any negligence on part of defendant. A fellow passenger threw a lighted match into plaintiff's dress in an open summer car. Her dress was of the lightest material, and, before defendant's driver knew anything of it, or by the exercise of the highest degree of care could have anticipated such a misfortune, the unfortunate lady was...