Williams v. East St. Louis & Suburban Railway Company

• Citation: 232 S.W. 759,207 Mo.App. 233
• Parties: CARRIE REDMOND WILLIAMS, Respondent, v. EAST ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant
• Decision Date: 07 June 1921
• Court: Missouri Court of Appeals

232 S.W. 759

207 Mo.App. 233

CARRIE REDMOND WILLIAMS, Respondent, v. EAST ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 7, 1921

Appeal from the Circuit Court of the City of St. Louis.--Hon. Frank Landwehr, Judge.

AFFIRMED.

Judgment affirmed.

Holland Rutledge & Lashly, for appellant.

(1) The court erred in refusing to give the peremptory instruction offered by appellant at the close of all the evidence. Chicago & Alton Ry. Co. v. Pillsbury, 123 Ill. 9; Woas v. Transit Co., 189 Mo. 673; Fewings v Mendenhall, 88 Minn. 336; Bosworth v. Union Road Co., 26 R. I. 314; Cole v. Alton, Granite City & St. L Traction Co., ___ F. ___; Meifert v. New Union Sand Co., 124 Mo.App. 491; American Brewing Assn. v. Talbot, 141 Mo. 674; Fuchs v. City of St. Louis, 467 Mo. 620. (2) The court erred in overruling the objection of appellant to the question asked by respondent of witness Brockway, to-wit, as to the time at which it was known at the office of defendant that riots were prevailing in East St. Louis. This question was improper, because there was no evidence that riots were prevailing in the morning of July 2nd, and also because obviously it called for a conclusion. (3) The court erred in refusing to strike out the answer given by witness Brockway to the question mentioned under the preceding heading, as said answer merely stated a conclusion of the witness and not any facts He stated he found conditions awfully bad, but he did not state any facts upon which he based the said opinion, or communicate any such facts to appellant's manager. (4) The court erred in giving instruction No. 1 at the instance of respondent. It requires a finding that mobs were assaulting negroes in East St. Louis when respondent boarded defendant's car at Belleville, and there was no evidence to this effect. (b) Said instruction required a finding that defendant knew at said time that mobs were assaulting negroes in East St. Louis, when there was no testimony in the case to this effect. See authorities cited under last paragraph. Also: Stone v. Hunt, 114 Mo. 66; State v. Hope, 102 Mo. 410; Evans v. Interstate Co., 106 Mo. 594; Wilkerson v. Eilers, 114 Mo. 245. (c) Said instruction required a finding against appellant that appellant failed to notify respondent of the danger of riding to East St. Louis, when there is no evidence in the case that appellant had any knowledge of such danger. (d) Said instruction allowed a finding against appellant that the latter knew of the operations of the mobs in East St. Louis and failed to make reasonable provision for the protection of plaintiff, when the police and militia, who were in the immediate vicinity, were unable to do so. (5) The court erred in refusing to give instruction A at the instance of appellant. Where a plaintiff's petition contains an allegation and there is no evidence to support it, it is the duty of the court to require the defendant in the case to state to the jury that there is no testimony to the said effect, and they should disregard the charge. Chrismer v. Bell Telephone Co., 194 Mo. 189. (6) The court erred in refusing to give instruction B offered by appellant. The law is that carriers are under no obligation to maintain the public peace in a city and that duty devolves upon the city and State, and that if the city and State are unable to do so it is not imposed upon the carrier. See authorities cited under heading No. 1. (7) The court erred in refusing to give instruction D at the instance of appellant. Said instruction correctly states the law to the effect that a carrier is bound to accept any person who offers himself for carriage, and in so accepting said person is not under any obligation to communicate to such person any vague apprehensions he may have about dangers that might result from the public enemy. See authorities cited under heading No. 1. (8) The court erred in refusing to give instruction E at the instance of appellant. Plaintiff's petition contained an averment that at the time she was accepted as a passenger in Belleville, mobs in East St. Louis were assaulting colored people and that the defendant had actual knowledge of this and negligently failed to warn the plaintiff. As there was no evidence that such mobs were assaulting negroes at such time or that the defendant had knowledge thereof, it was not the duty of appellant to state its mere apprehensions, if he had any, to the plaintiff. See authorities cited under heading No. 1. (9) The court erred in refusing to give instruction F offered by appellant, for the reasons mentioned under the preceding heading. (10) The court erred in refusing to give instruction G at the instance of appellant. Said instruction properly stated the law and should have been given, for the law is that if a passenger riding on a car is injured, not because she is a passenger on said car, but merely because a race riot is under progress in the city, there can be no liability on the part of a carrier for injuries inflicted by the mobs. See authorities cited under heading 1, supra. (11) The court erred in refusing to give instruction H at the instance of appellant. Said instruction correctly stated the law and if the car in question was surrounded by large armed mobs and if the strength of the mobs was such that the motorman and conductor in charge of the car could not successfully resist the mob or protect the passenger, the carrier is not liable for such failure to resist the mob. See authorities cited under heading No. 1. (12) The court erred in refusing to give instruction I at the instance of appellant where the petition contains a charge and there is no evidence to sustain it, it is the duty of defendant to so state to the jury and to warn the jury that plaintiff cannot recover thereunder. Chrismer v. Bell Telephone Co., 194 Mo. 189; See, also, authorities cited under heading 1, supra.

Homer G. Phillips and Jesse L. England for respondent.

A common carrier of passenges, having knowledge that rioters purpose, or, are likely to attack any of its passengers, while on its cars, is guilty of criminal negligence to expose such passengers to such peril without sufficient police protection. C. A. R. R. Co. v. Pillsbury, 123 Ill. L. C. 24. Where a common carrier of passengers ought reasonably to anticipate an attack upon its passengers by a mob, it is the duty of such common carriers to take precautionary measures to protect its said passengers from the fury of such mob. C. A. R. R. v. Pillsbury, supra. Where a common carrier might reasonably expect and anticipate from conditions known to exist, that certain of its passengers are subject to and likely to be injured, it is the duty of such carrier to make reasonable provision for safety of such passengers. Woas v. Transit Co., 198 Mo. 672. If by prompt intervention a threatened injury can be averted, prevented or mitigated in the case of a common carrier, failure to promptly take steps necessary to prevent such threatened injury is negligence on the part of the carrier. Woas v. Transit Co., supra 673; Railroad v, Burke, 53 Miss. 400; Britton v. Railroad, 88 N.C. 536.

NIPPER, C. Allen, P. J., and Becker J., concur; Daues, J., not sitting.

OPINION

NIPPER, C.

This is an action for damages against a common carrier, for an alleged assault committed upon plaintiff on the second of July, 1917, while she was riding as a passenger on one of defendant's street cars in the city of East St. Louis, Illinois.

Plaintiff in her petition alleges, among other things, that on the above-named date she became a passenger on one of defendant's cars, from the city of Belleville, Illinois, to the city of East St. Louis, aforesaid; that at the time she took passage on this car, a mob or mobs were operating in the city of East St. Louis, and then and there engaged in attacking, wounding, and killing members of the negro race; that at the time she became a passenger, the agents and servants of defendant knew these mobs were operating, and that to carry her into said city would endanger her life, she being a negro; that defendant failed to make reasonable provision for the protection of plaintiff while said car would be passing into said city; that when the car upon which she was being conveyed reached a point near State and Collinsville Avenue, members of said mob assaulted plaintiff in the presence of the motorman and conductor, without any protest or protection being rendered by them to plaintiff; that she was beaten, bruised, and wounded, her clothing torn from her body, with the exception of some clothing above the waistline, and she was rendered practically nude and semiconscious by the action of the members of this mob, and received serious internal injuries.

The petition further avers that the injuries were caused and occasioned by the negligence of defendant in failing to warn plaintiff of the danger of entering said city, whereby plaintiff would have averted said danger, and in negligently carrying her into said city, fully knowing the danger, without taking precautions to protect her from the acts of the mob.

The answer was a general denial.

Upon a trial before the court and a jury, plaintiff recovered judgment for $ 2,000. Defendant appeals, urging as grounds for reversal, the failure of the court to give a peremptory instruction for defendant, as well as objections to certain instructions given and refused.

Plaintiff resides in Madison, Illinois. On the morning of July 2, 1917 she left her home at that place, and took an electric car to East St. Louis at about nine a. m. After reaching East St. Louis, she changed cars for Belleville, and reached there between eleven or twelve o'clock. She was accompanied by another negro named Kendrick. After transacting...