Van Leer v. Wells

• Decision Date: 06 June 1924
• Docket Number: No. 18002.,18002.
• Citation: 263 S.W. 493
• Parties: VAN LEER v. WELLS
• Court: Missouri Court of Appeals

263 S.W. 493

VAN LEER v. WELLS

No. 18002.

St. Louis Court of Appeals. Missouri.

June 6, 1924.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by John Van Leer against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

"Not to be officially published."

Chas. W. Bates, T. E. Francis, and John F. Evans, all of St. Louis, for appellant.

Chas. P. Comer, of St. Louis, for respondent.

ALLEN, P. J.

This is an action for personal injuries sustained by plaintiff while a passenger on a street car operated by the defendant receiver in St. Louis county. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $4,500, and the case is here on defendant's appeal.

The petition charges that on July 17, 1921, plaintiff was a passenger on a car on defendant's Creve Cceur line in St. Louis county; that the car was crowded with passengers, and plaintiff and other passengers were riding on the footboard thereof; that defendant's agents and servants negligently operated the car, with passengers riding on the footboard, `and negligently allowed its Fee Fee station building or waiting room on said line "to stand close enough to the tracks to strike passengers riding on the footboard of the car operating past said building"; that defendant's agents and servants negligently operated the car, with passengers riding on the footboard thereof, past the building "when they knew, or by the exercise of ordinary care could have known, that said passengers were liable to be struck by said building"; that defendant's agents and servants negligently ran the car by said building "without warning to such passengers of the close proximity of the tracks and passing cars"; and that as a result of such negligence plaintiff, while riding on the footboard of the car, was struck by the building as the car passed the same, whereby he was injured as set out in the petition.

The answer is a general denial coupled with a plea of contributory negligence charging that plaintiff negligently assumed a dangerous position on the steps of a moving car when there were other places where and other cars upon which he could have ridden in safety, and in permitting his body to lean out from the car when he saw, or by the exercise of ordinary care could have seen, the station house in time, by the exercise of ordinary care, to have changed his position and averted the injury.

The evidence shows that on the evening of July 17, 1921, plaintiff was returning to the city of St. Louis from Creve Coeur Lake on one of the defendant's "summer ears," the car being a wide open car with seats extending across the entire width thereof, and with running boards at the sides. It appears that when plaintiff and his companions boarded the car at defendant's station at Creve Occur Lake, many people were waiting to take passage on defendant's cars, and that this was the only car available; and that when plaintiff got upon it all of the seats were occupied, and he and many other persons stood upon the right or outer running board. As the car was passing a small station building, known as the Fee Fee station, situated on the south side of the track, plaintiff's head struck the corner of the projecting roof of the building, whereby he was injured. Testimony for plaintiff, admitted over defendants objections, goes to show that as the car passed this building it was proceeding at about 25 miles per hour, which, it appears, was the usual speed of defendant's cars on that portion of said line; and that the car was swaying or rocking from side to side. Plaintiff said that he was "holding on" with one hand, and that the rocking of the car threw him outward. The evidence for plaintiff further tends to show that the "clearance between the roof and the car," e., the distance from the edge of the roof of the building to a point directly above the outer edge of the running board of a car of this type if standing beside the building, was about 18 or 19 inches. Defendant's evidence tends to show that this distance was, by measurement, 22 inches;. though its motorman estimated that it was 18 or 19 inches. And one witness for defendant testified that plaintiff was leaning outward from the car. It further appears that plaintiff is about 6 feet in height, and that as he stood upon the running board his head extended above the edge of the roof, which was about 5 feet and 3 inches above the running board.

There are but two assignments of error. The first is that the trial court erred in admitting the testimony as to the speed of the car and that it was rocking from side to side as it passed this building. It is said that such testimony "tended to raise an assignment of negligence not pleaded." But we think that this assignment of error is without merit. In admitting this testimony the trial court stated that it was admitted, not . for the purpose of showing negligence on the part of defendant with respect to the speed of the car, but as showing the manner in which the injury occurred. There was no effort on the part of plaintiff to...