Wellmeyer v. St. Louis Transit Co.

• Decision Date: 03 July 1906
• Citation: 95 S.W. 925,198 Mo. 527
• Parties: WELLMEYER v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

95 S.W. 925

198 Mo. 527

WELLMEYER v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 2.

July 3, 1906.

1. CARRIERS — PASSENGERS — CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

A passenger, standing on the platform of a street car, though there is room inside of the car, is not guilty of negligence as a matter of law; but the question of his negligence is for the jury.

2. SAME.

A passenger, while standing on the platform of a street car, was thrown therefrom by the jerking of the car. The passenger, when within about 300 feet of his destination, went to the platform to be ready to step off on the car reaching the point of destination. It was the custom for passengers to leave the car by way of the platform. Held, that the passenger was not guilty of contributory negligence as a matter of law, precluding a recovery, though there were unoccupied seats in the car.

3. DAMAGES—LOSS OF EARNINGS—PETITION— SUFFICIENCY.

A petition in an action for personal injuries, which alleges that, by reason of the injuries sustained, plaintiff has been permanently disabled from his labor and his avocation as merchant and druggist, and has lost or will lose the earnings of his labor and business, sufficiently pleads loss of earnings.

4. SAME—EVIDENCE—SUFFICIENCY.

In an action for personal injuries, plaintiff did not testify directly as to the value of his earnings, loss of which was caused by his injury, but his testimony showed that he was compelled to employ a man to perform the work he was engaged in at the time of the injury, and that the value of the services of the person so hired did not exceed $50 per month. Held to authorize the inference that during the time plaintiff was incapacitated for work the loss of his earnings was at least equal to the amount he paid another to fill his place.

5. TRIAL—INSTRUCTIONS—EVIDENCE.

A requested instruction is properly refused in the absence of evidence on which to predicate it.

6. SAME—REPETITION OF INSTRUCTIONS.

Where, in an action against a street railway company for injuries to a passenger, the court charged that it was the passenger's duty to exercise ordinary care for his own safety, and that if he failed to do so, and such failure contributed to his injury, he could not recover, it was not error to refuse to charge that if the passenger voluntarily exposed himself to danger, and while in that position he was injured, he could not recover.

7. CARRIERS—INJURY TO PASSENGERS—CONTRIBUTORY NEGLIGENCE.

A passenger on a street car was injured by being thrown from the car by a sudden lurch. The passenger at the time was standing on the front platform of the car. Prior to the accident he had experienced lurches at the place of the accident, but the shock at the time of the accident was more severe. He also knew of the defective condition of the track at the place of the accident. Held, that the passenger did not voluntarily expose himself to danger by standing on the platform; he having a right to rely on the implied contract of safe carriage.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by Joseph M. Wellmeyer against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle & Priest, J. W. Jamison, and John T. Gose, for appellant. E. W. Banister and A. R. Taylor, for respondent.

BURGESS, P. J.

This is an action by plaintiff against the defendant to recover $25,000 damages for personal injuries alleged to have been sustained by him while a passenger for hire upon one of defendant's cars by reason of being thrown from said car against a post, owing to the rocking of the car caused by the defective condition of defendant's track. The trial by the court and jury resulted in a verdict and judgment in favor of plaintiff for the sum of $5,000. Within four days after verdict defendant filed motion for a new trial, which was overruled. From the verdict and judgment, defendant appeals.

At the time of the injury plaintiff was a passenger on defendant's car, en route to Easton avenue, and as the car approached said avenue he went to the front platform to be ready to step off the car when it stopped. Plaintiff had a transfer on defendant's line west on Easton avenue. After taking his position on the platform he stood, with his back to the body of the car, holding with his right hand to the hand rail, and about 18 inches from the step of the car. While he was in the position indicated, according to plaintiff's evidence, the car gave a violent lurch by which he was thrown forward and sidewise, so that his head and shoulders were thrown beyond the body of the car and brought in violent contact with a post standing within a foot or 18 inches of the track, causing a fracture of the skull, injury to, and impairment of, the sight of his right eye, and a fracture of the shoulder blade and of two of his ribs. The petition, after alleging that the defendant was a corporation engaged in the business of carrying passengers for hire, avers that plaintiff was received as a passenger at Marcus avenue and Natural Bridge Road on said car, on May 7, 1902, and that defendant, for valuable consideration paid by plaintiff to defendant, undertook and agreed with plaintiff to carry him safely as such passenger on said car to his destination on defendant's line, to wit, Marcus and Easton avenues. That, in violation of its undertaking, and of its duty in the premises, defendant did, by its servants in charge of said car, so negligently run, control, and manage said car, to wit, about 200 feet north of Easton avenue, plaintiff's destination, and before said car reached plaintiff's destination, and while he was such passenger on said car, and did run said car at a high and negligent speed over defendant's track, which was rough and uneven and the joints were not broken, so that the passage of said car sustained whilst running upon said track violent shocks, directly tending to throw passengers from said car as to cause the plaintiff to be thrown from said car and to be greatly and permanently injured. "And plaintiff avers that whilst such passenger on said car he was moving to the front platform of said car for the purpose of leaving said car at his destination, which was one mode of egress from said car, provided by defendant for passengers, and whilst he was on said front platform of said car for said purpose, owing to the negligent management of said car by the defendant's servants, and owing to the negligent running of said car along and over said defective track at a high and negligent speed, and, owing to said negligent and defective condition of said track and the rails and joints thereof, the plaintiff was caused to be thrown from said car and sustained permanent injuries upon his body, head, arms, and shoulders, his skull was fractured, his eyes and the nerves thereof were injured, his sight impaired, his eyes disordered and crossed, his shoulder blade was broken, his ribs were broken on the left side, his lungs were injured, the artery of his head was broken, and his heart was injured, and plaintiff sustained other injuries upon his body and internal injuries. That by his injuries so sustained the plaintiff has suffered and will suffer great pain of body and mind, has been permanently disabled from his labor and his avocation as merchant and druggist, and has lost and will lose the earnings of his labor and business, has incurred and will incur large expenses for medicines, medical and surgical attention, and nursing, and his health and strength has been impaired, and he is maimed and disfigured for life, to his damage in the sum of $25,000, for which sum he prays judgment." The defenses were a general denial and a plea of contributory negligence. The answer further avers "that plaintiff's alleged injuries were caused by the negligence of plaintiff in riding upon the front platform of the car, when he might have taken a safe and secure position inside the car, and that at the time of the taking of such position upon the platform of the car he had full knowledge of the condition of the car track, trolley pole, and car, and their relative positions to each other."

The evidence on the part of the plaintiff tended to show that at the place of the accident the ties were worn out and rotten to such an extent that the car would frequently jump the track; that the joints of the rails were not in line, and at places the one rail was higher than the other, so that the car in running over the track would sustain violent shocks and jerks and would lurch sidewise; and that this condition existed at the time of the injury. Henry N. Barkess, a witness who saw the accident, testified that at the time of the accident the car seemed to leap or surge several feet towards the east, and the next instant he saw plaintiff lying motionless on the ground; that he walked to the place where the accident occurred, and saw that, at a point about six feet north of the post against which plaintiff struck, the south rail was about half an inch higher than the end of the north rail on the west side of the track. Monte H. Beenken, who had formerly been a conductor in the employ of the defendant, and who passed over the track frequently, testified that the track was in a very bad condition; that the rails and ties were old, and the foundation of the track bad; that sometimes a rail would spring in two; and that at places the cars had to be run slow to keep from jumping the track. The evidence showed that plaintiff became a passenger on the car at Marcus avenue and Natural Bridge Road, paying his fare and taking a seat on the left side of the car; that when within about 300 feet of his destination he went to the front platform to be ready to step off promptly, and that the usual way of getting off the car at this point was by way of the front platform; that when within about 200 feet of Easton avenue, and while he was standing on said platform, holding to...