Trotter v. St. Louis & Suburban Ry. Co.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGoode
Citation99 S.W. 508,122 Mo. App. 405
Decision Date22 January 1907
PartiesTROTTER v. ST. LOUIS & SUBURBAN RY. CO.
99 S.W. 508
122 Mo. App. 405
TROTTER
v.
ST. LOUIS & SUBURBAN RY. CO.
St. Louis Court of Appeals. Missouri.
January 22, 1907.

1. APPEAL—REVIEW—ACQUIESCENCE IN INSTRUCTIONS.

Defendant does not acquiesce in an erroneous instruction, given for plaintiff, putting the burden of proof on defendant, before plaintiff has made a prima facie showing where, after instructions asked by defendant, declaring the contrary rule, have been denied, it asks an instruction containing a statement that such burden is on it, its purpose being to present the issues as favorably as possible to its defense, under the theory as to the burden adopted by the court.

2. CARRIERS—INJURY TO PASSENGER—NEGLIGENCE —BURDEN OF PROOF—INSTRUCTION.

An instruction, in an action for injury to a passenger on an electric street car, on the ground of an explosion, causing panic among the passengers, that, if an explosion occurred in the machinery of the car causing a panic among the passengers, and plaintiff without fault received the alleged injury, then defendant had the burden of proving that the machinery was safe and sound, and that the explosion was caused by inevitable accident, or defects that could not have been known by the exercise of the highest human skill, diligence, and foresight, is erroneous, as making the explosion prima facie evidence of negligence under the doctrine of res ipsa loquitur, notwithstanding there was evidence to show that the explosion was not a dangerous one, but due to the combustion of fuses, such as often happens on electric cars when well constructed and operated, and not sufficient to excite a panic among persons of average intelligence.

3. TRIAL—ERRONEOUS INSTRUCTION—CURE BY OTHERS.

Error of an instruction in putting on defendant the burden of proof, before plaintiff had made out a prima facie case of negligence, is not cured by an instruction that, if certain facts were found, defendant was not liable.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Ella Trotter against the St. Louis & Suburban Railway Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

Jefferson Chandler, F. M. Pierce, and S. P. McChesney, for appellant. J. S. McIntyre and N. S. Brown, for respondent.

GOODE, J.


Plaintiff says she was injured on the evening of June 22, 1904, in a panic among the passengers on one of the defendant's trolley cars. She was received as a passenger at Lindell Boulevard Station. The car was crowded with passengers, some of whom could not find seats and were standing in the aisles and on the front and rear platforms. Plaintiff says that, after the car had proceeded a short distance from the station, her attention was attracted by flames and smoke underneath its floor and about its sides. As the car could not be propelled in the usual manner, the motorman went from the front to the rear platform and started the car forward. It did not move freely, and was run backwards and forwards a short distance for a while, and finally moved a block further on its way toward town. The passengers, including plaintiff, are alleged to have become so frightened that many of them tried to get off the car. The averments are that they requested the conductor to allow them to get off, but he refused to do so; that while the car was standing still another car came up behind and the motorman of said other car came on the platform of the car plaintiff was on and attempted to start it. Immediately following this attempt, says the petition, there was a loud noise and an explosion from the machinery and mechanism of said car, caused by the negligence of defendant, and said noise and explosion were followed by smoke and flames in, around, and through said car. The noise and explosion greatly frightened plaintiff and created a panic among the other passengers, and caused such other passengers and plaintiff to

99 S.W. 509

endeavor to escape therefrom, and, while plaintiff was endeavoring to escape, other passengers, in their efforts to escape, knocked and crushed plaintiff against the seat and floor of the car, greatly injuring her left knee and leg. The second count of the petition is exactly like the first one except the specifications of negligence, which are the attempt of defendant's servants to start the car plaintiff was on, or allowing the motorman of the car behind to start it when noises and explosions were occurring, and the refusal of defendant's servants to hold the car still and allow plaintiff and the other passengers to get off. The answer filed was a general denial and an averment that plaintiff was safe in her seat at the time of the alleged occurrence; that the noises and explosions described in the petition, if any occurred, were harmless and were in no wise adequate to cause peril to plaintiff; that whatever injury she received was self-inflicted, and due to her own carelessness in leaving her seat without occasion or justification, and exciting a needless confusion on the car, and not because of any fault or negligence on the part of defendant.

Testimony was introduced by plaintiff tending to prove that, after she got aboard, the car traveled a short distance and then became unmanageable; that the motorman moved it backwards and forward for a while, but made no great headway with it; that the motorman of another car got on it and attempted to start it. Explosions and flashes of light followed the attempt to start the car, but as to whence they came or the intensity and alarming nature of them the evidence is not consistent. Some testimony conduces to show the explosions came from beneath the car; other testimony that they proceeded from the controller box on the rear end, and still other testimony that they were due to the burning out of the fuse or circuit breaker at the top of the car. It seems there was one explosion in the front of the car and several in the rear. Much of the evidence goes to show these explosions and the light and flames which accompanied them were of an unusual and terrifying character, and produced a panic among the passengers, who struggled to get off and in so doing pressed plaintiff against a seat and injured her. Some testimony tends to show the explosions and flashes were, as said, due to the blowing out of the circuit breaker, or fuse, and were not of an unusual character, but such as are of common occurrence, necessarily incident to the operation of electric cars, and productive of no alarm to the passengers. It may be that the evidence of the latter sort was weak in comparison with that tending to show the explosions were violent and extraordinary, but of this matter the jury was to judge.

The court gave this instruction at plaintiff's request and against defendant's objection: "The court instructs the jury that, if you believe and find from the evidence that on or about the 22d day of June, 1904, the plaintiff was a passenger on one of defendant's cars, and while said plaintiff was a passenger thereon, an explosion occurred in and from the machinery of said car, by reason of which a panic was caused among the passengers in said car, and the plaintiff, without fault or negligence on her part, and while exercising ordinary care under the circumstances, received the...

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9 practice notes
  • Zichler v. St. Louis Pub. Serv. Co., No. 30789.
    • United States
    • Missouri Supreme Court
    • April 20, 1933
    ...res ipsa loquitur rule is inapplicable. 45 C.J. p. 1213, sec. 780; Kapros v. Pierce Oil Corp., 25 S.W. (2d) 781; Trotter v. Railway Co., 122 Mo. App. 405; McGrath v. St. Louis Transit Co., 197 Mo. 104; And authorities cited, supra. (b) And not only does the petition allege facts showing tha......
  • Gibler v. Quincy, O. & K. C. R. Co.
    • United States
    • Missouri Court of Appeals
    • May 17, 1910
    ...some negligence. Mitchell v. Chicago & Alton Ry. Co., 132 Mo. App. 143, 112 S. W. 291; Trotter v. St. Louis & Suburban Ry. Co., 122 Mo. App. 405, 99 S. W. 508. Except for the state of the pleading which now precludes it, there is no good reason why the doctrine should not apply in t......
  • Rice v. Chicago, B. & Q. Ry. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • May 31, 1910
    ...Hutchinson on Carriers (3d Ed.) §§ 1412, 1413, 1414; Dougherty v. Mo. Pac. R. Co., 9 Mo. App. 478; Trotter v. St. Louis & S. R. Co., 122 Mo. App. 405, 99 S. W. 508; Clark v. C. & A. R. Co., 127 Mo. 197, 29 S. W. 1013; Benedick v. Potts, 88 Md. 52, 40 Atl. 1067, 41 L. R. A. 478; Curt......
  • Henneke v. Gasconade Power Co., No. 19833.
    • United States
    • Court of Appeal of Missouri (US)
    • May 26, 1941
    ...v. Railway Co., 195 Mo. 111, 93 S.W. 269; Kapros v. Pierce Oil Corp., 324 Mo. 992, 25 S.W. (2d) 777, 781; Trotter v. St. Louis Ry. Co., 122 Mo. App. 405, 412, 413; State ex rel. Hurley v. Becker, 334 Mo. 437, 66 S.W. (2d) 524; McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W. (2d) 557; Meade v......
  • Request a trial to view additional results
9 cases
  • Zichler v. St. Louis Pub. Serv. Co., No. 30789.
    • United States
    • Missouri Supreme Court
    • April 20, 1933
    ...res ipsa loquitur rule is inapplicable. 45 C.J. p. 1213, sec. 780; Kapros v. Pierce Oil Corp., 25 S.W. (2d) 781; Trotter v. Railway Co., 122 Mo. App. 405; McGrath v. St. Louis Transit Co., 197 Mo. 104; And authorities cited, supra. (b) And not only does the petition allege facts showing tha......
  • Gibler v. Quincy, O. & K. C. R. Co.
    • United States
    • Missouri Court of Appeals
    • May 17, 1910
    ...some negligence. Mitchell v. Chicago & Alton Ry. Co., 132 Mo. App. 143, 112 S. W. 291; Trotter v. St. Louis & Suburban Ry. Co., 122 Mo. App. 405, 99 S. W. 508. Except for the state of the pleading which now precludes it, there is no good reason why the doctrine should not apply in t......
  • Rice v. Chicago, B. & Q. Ry. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • May 31, 1910
    ...Hutchinson on Carriers (3d Ed.) §§ 1412, 1413, 1414; Dougherty v. Mo. Pac. R. Co., 9 Mo. App. 478; Trotter v. St. Louis & S. R. Co., 122 Mo. App. 405, 99 S. W. 508; Clark v. C. & A. R. Co., 127 Mo. 197, 29 S. W. 1013; Benedick v. Potts, 88 Md. 52, 40 Atl. 1067, 41 L. R. A. 478; Curt......
  • Henneke v. Gasconade Power Co., No. 19833.
    • United States
    • Court of Appeal of Missouri (US)
    • May 26, 1941
    ...v. Railway Co., 195 Mo. 111, 93 S.W. 269; Kapros v. Pierce Oil Corp., 324 Mo. 992, 25 S.W. (2d) 777, 781; Trotter v. St. Louis Ry. Co., 122 Mo. App. 405, 412, 413; State ex rel. Hurley v. Becker, 334 Mo. 437, 66 S.W. (2d) 524; McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W. (2d) 557; Meade v......
  • Request a trial to view additional results

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