Van Horn v. St. Louis Transit Co.

• Decision Date: 19 June 1906
• Parties: VAN HORN v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

95 S.W. 326

198 Mo. 481

VAN HORN v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri. Division No. 2.

June 19, 1906.

1. CARRIERS — INJURIES TO PASSENGERS — STREET CARS—SECURE POSITION—DUTY OF CONDUCTOR.

Where the conductor of an open street car knew that decedent's position on the end of a seat and in front of an upright stanchion was not reasonably safe, it was his duty to control the running of the car with a degree of care proportioned to the danger to which decedent was exposed.

2. NEGLIGENCE—PETITION—ISSUES—PROOF.

Where a petition charges negligence specifically, the acts charged, or some of them, as constituting negligence, must be proved in order to entitle plaintiff to a verdict.

3. CARRIERS—INJURIES TO PASSENGERS—INSECURE POSITION—SPEED.

Where the seat in defendant's street car, which deceased occupied at the time of the accident, was insecure, the conductor would be presumed to have had knowledge thereof, and deceased having been thrown from the car because of her insecure and dangerous position in connection with the swaying of the car, it was immaterial to plaintiff's right to recover whether the car was running at an excessive rate of speed or not.

4. SAME — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

In an action for death of a passenger by being thrown from a street car, defendant requested the court to charge that if deceased, of her own volition got off from the car while in motion, and in consequence of her own act in getting off, was thrown to the ground and sustained injuries from which she died, plaintiff could not recover though the car had not sufficient guards to the seats or was unduly crowded or was running at an unusual rate of speed, or though the track was rough and caused jerks and shocks of the car as it proceeded over the same. The court modified the instruction by adding a clause, unless the jury believe that the crowded condition of the car, the insufficiency of the guards on the seats or the running at an unusual speed or the roughness of the tracks, jerks, etc., or all combined, was the proximate cause of the injury. Held, that the instruction in its original form correctly presented defendant's defense of contributory negligence, and that the modification was improper.

5. SAME.

Where, in an action for death of a passenger by being thrown from a street car, certain instructions presented the theory that if deceased voluntarily placed herself in a position of peril or voluntarily left the car "without the knowledge of the conductor or motorman in charge of the car or before they could interpose to prevent her," the carrier was not liable, such instructions did not cover an instruction that if decedent of her own volition got off the car while in motion and in consequence of her own act was thrown to the ground, and sustained injuries of which she afterwards died, the verdict must be for defendant, whether the conductor or motorman knew or might have known that she was in the act of getting off the car, or whether they took any steps to prevent her doing so.

Appeal from Circuit Court, Gasconade County; William E. Davidson, Judge.

Action by Charles Van Horn against St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Boyle & Priest, Geo. W. Easley, and Geo. T. Priest, for appellant. A. R. Taylor, for respondent.

BURGESS, P. J.

This is an action for five thousand dollars as damages for the death of plaintiff's wife, caused through the alleged negligence of defendant's servants whilst operating one of defendant's cars in which the deceased was a passenger. The cause was tried before the court and jury, and a verdict and judgment rendered in favor of plaintiff for the sum of five thousand dollars. After unavailing motions for new trial and in arrest of judgment, defendant appeals.

The petition, omitting the formal parts, is as follows: "The plaintiff states: That the defendant is, and at the times herein mentioned was, a corporation by virtue of the law of Missouri, and used and operated the railway and car herein mentioned as a carrier of passengers for hire. That on the 18th day of May, 1901, the defendant by its servants in charge of its west-bound car at Hamilton and Delmar avenues, received upon said car, as a passenger thereon, the plaintiff's wife, Mary Holmes Van Horn, and for a valuable consideration, paid to the defendant by plaintiff's said wife the defendant undertook and agreed with the plaintiff's said wife to carry her safely as such passenger on said car to her point of destination on defendant's line of railway, to wit, Delmar Garden, and to there stop said car and allow her a reasonable time and opportunity to alight in safety from said car. That said car was a public conveyance in charge of its drivers, its motorman and conductor thereon. Yet this plaintiff avers that the defendant unmindful of its undertaking, and of its duty in the premises, did, whilst plaintiff's wife was such passenger on said car, and before she reached her said point of destination, to wit, at a point in St. Louis county, about 800 feet east of said Delmar Garden, so recklessly and carelessly run and conduct said car, and did so carelessly cause said car to run at a violent and reckless speed, as to cause the plaintiff's wife to fall and be thrown from said car, and to be so injured that she died from said injuries on the day aforesaid. And, for a further assignment of negligence, the plaintiff avers that at the time the plaintiff's wife was so received upon said car, she was received as a passenger on the end of a seat of said car, which seat was so crowded that plaintiff's wife had no sufficient room to sit securely thereon, and was thereby exposed to the danger of being thrown from said car by any violent motion or shock to said car. Yet the defendant's servants, in charge of said car, did, whilst plaintiff's wife was so in said insecure position on said car, and without means adequate to secure her position on said car, caused said car to be run at a high and reckless speed and to sustain jerks and shocks, whereby the plaintiff's wife was caused to fall and be thrown from said car as aforesaid, which negligence of the defendant and its servants directly contributed to cause the injury and death of the plaintiff's said wife. And for another assignment of negligence the plaintiff avers that said car was an open car, with the seat on which his wife was so received as a passenger on said car extending to the side of said car without any sufficient guard or protection to prevent her, as such passenger from falling, or being thrown from said car, by its violent motion or shock. Which said insecure and defective condition of said car directly contributed to cause the injury and death of plaintiff's wife as aforesaid. And for another assignment of negligence the plaintiff avers that at the time of said injury and death of his wife, defendant's track on which said car was running was insufficiently ballasted and rough, and unsafe for the passage of vehicles, or cars thereon, by reasons of its causing the car to run rough, sway and sustain jerks and shocks, when the car attained high or even ordinary speed, which rendered the position of plaintiff's wife upon said seat very dangerous, and made it probable that she would be thrown from said car by said car running at a high or even ordinary speed. Yet with such condition of said track existing, defendant's servants in charge of said car...