Williamson v. St. Louis Transit Company

• Citation: 100 S.W. 1072,202 Mo. 345
• Parties: KATHERINE L. WILLIAMSON v. ST. LOUIS TRANSIT COMPANY, Appellant
• Decision Date: 19 March 1907
• Court: United States State Supreme Court of Missouri

100 S.W. 1072

202 Mo. 345

KATHERINE L. WILLIAMSON v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, Second Division

March 19, 1907

Appeal from St. Louis City Circuit Court. -- Hon. John A. Blevins Judge.

Affirmed.

Boyle & Priest and Edward T. Miller for appellant.

(1) The court erred in overruling defendant's challenge for cause to the juror Gustav Schoenberg, it being admitted that he had served as a juror within the twelve months next preceding the trial. Sec. 6547, R. S. 1899; Theobald v. Railroad, 191 Mo. 395; Barker v. Hine, 54 Ind. 542; City of Goshen v. England, 119 Ind. 368; Wiseman v Bruns, 36 Neb. 467; Williams v. Grand Rapids, 53 Mich. 271; People v. Thacker, 108 Mich. 652; Bissell v. Ryan, 23 Ill. 566; Brooks v Bruyn, 35 Ill. 392; Railroad v. Eaton, 136 Ill. 9; State v. Lowe, 56 Kan. 594; Railroad v. Snedeger, 5 Kan.App. 700; Courvoisier v. Raymond, 23 Colo. 113; Smith v. State, 102 Tenn. 721; 17 Am. and Eng. Ency. Law (2 Ed.), p. 1122. (2) The court erred in giving plaintiff's instruction 1. (a) Paragraph 1 is not supported by any evidence. O'Fallon v. Boismenu, 3 Mo. 405; Wilkerson v. Eilers, 114 Mo. 245. (b) The final paragraph of the instruction does not properly submit the issue as to plaintiff's negligence in voluntarily riding upon the platform of the car. Schroeder v. Michel, 98 Mo. 43; May v. Crawford, 150 Mo. 504; 1 Blashfield, Instructions to Juries, sec. 61. (3) The court erred in refusing defendant's instruction 1 as requested and in giving said instruction with amendments of its own motion. (a) The instruction as amended is erroneous. It made defendant an insurer of plaintiff's safety. Thompson v. Railroad, 140 Mo. 125; Amer. Brewing Assn. v. Talbot, 141 Mo. 674; Graney v. Railroad, 157 Mo. 666; Fuchs v. St. Louis, 167 Mo. 620; McFadden v. Railroad, 44 N.Y. 478; Readhead v. Railroad, L. R. 4 Q. B. 379; Ray on Negligence of Imposed Duties (Personal), pp. 133, 134; 2 Shear. & Redf., Negligence (5 Ed.). sec. 496. (b) The instruction is in irreconcilable conflict with plaintiff's instruction 1 and defendant's instruction 4. Livingston v. Railroad, 170 Mo. 452; Shepard v. Railroad, 189 Mo. 362. (4) The court erred in refusing defendant's requested instruction 5 and in giving the same of its own motion as amended. (a) The instruction as requested correctly declared that if previous explosions were not dangerous, then defendant was not negligent in permitting plaintiff to ride on the front platform. Thompson v. Railroad, 140 Mo. 125. (b) There is no evidence to support the court's amendment to the instruction, with respect to former explosions, frightening passengers and making them "likely to jump off such car while in motion." Instructions not supported by the evidence are erroneous. Wilkerson v. Eilers, 114 Mo. 245. (5) The court erred in refusing defendant's requested instruction 9. Defendant was not required to provide against an injury that could not be reasonably anticipated. If it did its duty it was not negligent and the instruction so declared. Thompson v. Railroad, 140 Mo. 125; Fuchs v. St. Louis, 167 Mo. 620. (6) The court erred in refusing defendant's peremptory instruction "B" offered at the close of all the evidence. The record shows that plaintiff's injuries were not due to negligence on defendant's part, but to unavoidable accident. Thompson v. Railroad, 140 Mo. 125; Graney v. Railroad, 157 Mo. 666; Fuchs v. St. Louis, 167 Mo. 620.

Jamison & Thomas for respondent.

(1) There was no reversible error in the overruling of defendant's challenge of juror Gustav Schoenberg. (a) Gustav Schoenberg was a competent special juror in the city of St. Louis, and is not subject to qualifications provided in section 6547, Revised Statutes 1899. Secs. 6564, 6566, 6567, R. S. 1899; State ex rel. v. Withrow, 133 Mo. 500; State v. Faulkner, 175 Mo. 546; State v. Lehman, 175 Mo. 619. (b) Defendant could not have been harmed by permitting Gustav Schoenberg to remain on the jury, as he did not sign the verdict nor participate therein. Sec. 865, R. S. 1899; West v. Forest, 22 Mo. 344; O'Brien v. Vulcan Iron Works, 7 Mo.App. 257; Dieckman v. Young, 87 Mo.App. 530; Hensler v. Stix, 185 Mo. 238; Portwright v. Railroad, 183 Mo. 72; Smith v. Peacock (Ga.), 88 Am. St. Rep. 53. (2) It was incumbent upon defendant, as a common carrier, to use a very high degree of care in providing a safe place for carrying the plaintiff. Clark's Accident Law, Street Railways (2 Ed.), sec. 49; Fetter on Carriers of Passengers, secs. 38, 172; Nellis on Street Railroad Accident Law, sec. 24; Merwin v. Railroad, 1 N.Y.S. 267; Harrison v. Electric Light Co., 195 Mo. 606; Hoepper v. Southern Hotel Co., 142 Mo. 388. (3) The undisputed physical facts shown in the case at bar make out a prima facie case of negligence. Nellis on Street Railroad Accident Law, p. 67; Clark's Accident Law, Street Railways (2 Ed.), sec. 50; Fetter on Carriers of Passengers, secs. 44, 480, 483, 490; Poulsen v. Railroad, 18 A.D. 221; 30 A.D. 246; Gilmore v. Railroad, 6 App.Div. (N. Y.) 117; Leonard v. Railroad, 57 A.D. 125; Buckbee v. Railroad, 64 A.D. 360; Redmond v. Railroad, 185 Mo. 1; Chadwick v. Railroad, 195 Mo. 517; Hipsley v. Railroad, 88 Mo. 348; Ryan v. Railroad, 190 Mo. 621; Dougherty v. Railroad, 9 Mo.App. 478, 81 Mo. 325; Yoemans v. Navigation Co., 44 Cal. 71; Spear v. Railroad, 119 Pa. St. 61; Och v. Railroad, 130 Mo. 27; Denver Tramway Co. v. Reid, 4 Colo.App. 53. (4) The sufficiency of defendant's precaution and inspection of its appliances were questions of fact to be determined by the jury under instructions of the court. Nellis on Street Railroad Accident Law, pp. 66, 69; Fetter on Carriers of Passengers, sec. 41; Palmer v. Canal Co., 120 N.Y. 170; Norris v. Railroad, 24 N.Y.S. 140. (5) It was not negligence on the part of plaintiff to enter upon or ride upon the front platform. (6) Plaintiff, in the face of apparent peril and danger, occasioned by defendant's negligence, was not required, in attempting to escape from such, to exercise the judgment and discretion which would be required of her when not dominated by terror or impending danger; and it was not negligence on her part to jump from said car to escape the real or apparent danger. Bishop v. Railroad, 121 Mo. 216; Kleiber v. Railroad, 107 Mo. 240; McManus v. Railroad, 116 Mo.App. 110; Ephlan v. Railroad, 137 Mo. 187; McPeak v. Railroad, 128 Mo. 617; Siegrist v. Aarot, 86 Mo. 200; Adams v. Railroad, 74 Mo. 553; Wesley City Coal Co. v. Healer, 84 Ill. 129; Twomley v. Railroad, 69 N.Y. 160; Beach on Contributory Negligence, p. 43; Whitaker Smith's Negligence, sec. 392; Jones v. Boyce, 1 Stark 493; 2 Sherman & Redfield on Negligence, sec. 474; Stokes v. Salstonstall, 13 Peters 181. (7) Plaintiff's instruction 1 was supported by the evidence and properly submitted the issue to the jury, and there was no error in giving said instruction. (8) The court properly amended defendant's instruction 1. (9) The court properly amended defendant's instruction 5 and all of said instructions, as amended, were warranted by the evidence. (10) The court properly refused defendant's instruction 9, as all the defenses submitted thereby were covered by other instructions given by the court. (11) Under the law and evidence in the case, the issues involved were properly submitted to the jury and the court properly refused defendant's peremptory instruction "B."

OPINION

BURGESS, J.

Plaintiff sues for ten thousand dollars damages for personal injuries sustained by her. The petition, after alleging that the defendant is and was a corporation duly organized under the laws of this State and engaged as a common carrier of passengers in the operation of a system of street railroads, with cars propelled by electricity, in the city of St. Louis, proceeds as follows:

"That on the 24th day of August, 1902, the defendant company, as such common carrier, was engaged in operating a double track system of street railroads, with cars propelled by electricity, on Delmar avenue, in said city. That on said day the plaintiff entered upon one of the cars of defendant company as a passenger at Forest Park, then and there ready and willing to pay her fare as such upon demand; that at the time of the entry of plaintiff upon said car of the defendant company all the seats and the entire interior thereof were crowded and occupied by passengers; that upon the invitation of defendant, plaintiff, together with other passengers entered upon the front platform of said car, which was then and there open for the reception of all intended passengers, and was by defendant's servants, in charge of said car, negligently invited and permitted to take a seat upon a certain box constituting a part of said car and set up and attached to the closed side of said front platform of said car, which position so taken by plaintiff (although plaintiff was at the time entirely ignorant thereof) was, owing to the dangerous motive power employed, and the proximity of the controller box and other appliances of said car, a hazardous position for passengers to occupy; that explosions were liable to occur in said controller box and other electrical appliances of said car, connected therewith (of which the plaintiff was at the time entirely ignorant), which would cause the plaintiff and other passengers riding upon said front platform to leap and jump therefrom to secure their and her safety. That after plaintiff had so entered upon said front platform, the said car was in charge of the servants and employees of the defendant and was by them being run over its tracks in an easterly direction on Delmar avenue. That the said car was being propelled by said defendant by the use of a dangerous propelling power, to-wit: electricity, and by the use of dangerous...