Willmot v. Corrigan Consolidated St. Ry. Co.

• Decision Date: 09 November 1891
• Citation: 106 Mo. 535,17 S.W. 490
• Court: Missouri Supreme Court
• Parties: WILLMOT v. CORRIGAN CONSOLIDATED ST. RY. CO.

17 S.W. 490

106 Mo. 535

WILLMOT v. CORRIGAN CONSOLIDATED ST. RY. CO.

Supreme Court of Missouri.

November 9, 1891.

INJURY TO PASSENGER — DEGREE OF CARE — INSTRUCTIONS.

1. Plaintiff was injured by being thrown from defendant's street-car while standing on the platform. Held, that while it was plaintiff's duty to place himself in a safe position on the car, and in remaining outside he assumed the risks, yet the fact of his riding on the platform did not sever his relation of passenger to defendant, and

he had a right to the same care of defendant that he would have been entitled to if he had taken a seat inside the car.

2. There was evidence, though conflicting, that while the car was being driven at a dangerous speed it struck an obstruction on the track, and the jolting caused thereby threw plaintiff off and injured him. Held, that defendant was not entitled to a nonsuit.

3. Where plaintiff alleged that the injury was caused by the negligence of defendant's driver, and defendant denied this, and alleged contributory negligence on the part of plaintiff, it is error for the court in instructing the jury not to present the effect of contributory negligence as well as the carelessness of defendant.

In banc. Appeal from circuit court, Jackson county; JAMES H. SLOVER, Judge.

Action for personal injury by Samuel Willmot against the Corrigan Consolidated Street-Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Jones & Jones and Crittenden, Stiles & Gilkerson, for appellant. Pratt, Ferry & Hagerman, for respondent.

THOMAS, J.

Plaintiff, a minor, brought this action to recover damages for personal injuries alleged to have been sustained by him while a passenger on defendant's street-railway car. He recovered judgment in the circuit court of Jackson county for $5,000, from which defendant appealed to this court.

1. The first proposition we will discuss is in relation to plaintiff's right of recovery upon the pleadings and evidence. This point has been expressly made at the hearing before the court in banc, and, as it fairly arises on the record of the trial, is entitled to be now considered, though not raised earlier in this court. In order to dispose of this point intelligently, it becomes necessary to give a summary of the pleadings and evidence. Plaintiff, who prosecutes this action by next friend, bases his right to recover upon the ground that, being a passenger on a car of defendant's street railway in Kansas City, in September, 1885, he was thrown to the ground, and under the wheels of said car, and seriously injured, by reason of the negligence, carelessness, and recklessness of defendant's agent in driving said car at an unusually high and dangerous rate of speed. The answer contained a general denial, and a plea of contributory negligence on the part of the plaintiff (1) in taking and keeping an improper position on the car; (2) in attempting to get off the car while moving; and (3) in negligently conducting himself while on the car. Defendant did not interpose a demurrer to the evidence at the close of plaintiff's case, but at the close of the evidence on both sides it did ask the court to instruct the jury to return a verdict for defendant, which the court refused to do, thus presenting the point under review.

Plaintiff's evidence tended to show that he was 12 years of age at the time of the accident. He started down town about 3 o'clock P. M., with another boy, about 14 years old. They boarded one of the street-cars of defendant's line, some two blocks away from the point of the injury. The car was in charge of a driver, who acted as conductor, when the boys came aboard, by way of the front platform. Plaintiff's companion took a position on the platform proper, the plaintiff himself remaining on the lower step, with his back to the street, his right hand grasping the hand-rail attached to the body of the car, inside of which there was ample sitting room. The driver received the fare from the boys. Louis Rollman testified that he was on the car just prior to the injury, and that the driver of the car went by the name of Big Jim. He says: "I got on the front end of the car. * * * Just after I jumped on, Jim collected the fare from some little boy standing on the front end of the car, and he said, `Lou, I want your fare.' I said, `Well, you go to the devil, Jim,' or something that way. In fun I meant it, for I was acquainted with him. I did not expect to pay any fare. * * * He said, `You'll have some fun getting off;' and he commenced whipping up the mules into a lope." Rollman then went through the car to the rear, and got off, thinking the car was going too fast to attempt getting off from the front end. Just as he got off, he saw the plaintiff lying on the ground. Other witnesses testified to the whipping of the mules by the driver, and to the high rate of speed at which the car was going, when it apparently ran over some obstruction on the railway track, causing it to jolt suddenly about the time plaintiff fell. Plaintiff says the jolt and motion of the car loosened his hold upon the handrail, he fell, and the car passed over his knee, causing the injury complained of. On the part of the defendant, the evidence tended to show that the car was driven at the usual and moderate rate of speed, and that plaintiff, desiring to go to the rear end of the car with his companion, jumped off, and thus received his injuries. The driver of the car testified that Rollman was not on the car at the time of and immediately prior to the accident, and that no such conversation and conduct on his part occurred as testified to by Rollman.

Defendant's attorneys concede that, if it be held that the testimony of Rollman can be considered by the court, there was evidence of negligence of the defendant to go to the jury; but they devote much space to show that he is unworthy of credence. As it is not the province of this court to pass upon the credibility of this witness, nor upon the weight of his testimony, in passing upon a demurrer to the evidence, we will confine our discussion of the subject to the alleged contributory negligence of the plaintiff. All the evidence showed that plaintiff stood upon the step of the front platform of the car, whence he fell off and was injured. Without attempting to review the adjudged cases and the works of the text-writers in regard to the rights of street-car platform passengers, and the duties and obligations of carriers to them, we will state succinctly the general principles applicable thereto, which, we take it, are fairly deducible therefrom, and which are, in our judgment, supported by reason: (1) Plaintiff was a passenger on defendant's car, and it was therefore defendant's duty to exercise the highest practical care to safely carry him during the trip. Furnish v. Railway Co., 102 Mo. 438, 13 S. W. Rep. 1044. (2) It was plaintiff's duty, on getting on board of the car, to have placed himself in a safe position therein, there being at the time ample room inside; and having voluntarily taken position on the step of the platform, and remained there during transit, he must be held to have assumed all the risks of danger ordinarily incident to such position on such a conveyance. But he did not assume the risk of danger created by the negligence of the carrier. (3) His taking and keeping a position on the step of the platform, though known to him to be not as safe as a seat inside the car, did not, however, sever his relation of passenger to the defendant as carrier; and while thus riding he had a right to exact of the carrier the highest practical care, not only in the appliances used, but also in the management of the conveyance. In other words, by his assumption of this position, whether known to be dangerous or not, and hence his assumption of the risks ordinarily incident to that position, he did not forfeit his right to exact the same care of the carrier that he would have been entitled to exact if he had taken the safest seat provided for him. The relation of passenger and carrier between plaintiff and defendant, with all that that term imports, continued to the time of the injury.

In support of these propositions, we cite the following authorities: Wagner v. Railway Co., 97 Mo. 512, 10 S. W. Rep. 486; McGee v. Railway, 92 Mo. 208, 4 S. W. Rep. 739; Muehlhausen v. Railway Co., 91 Mo. 344, 2 S. W. Rep. 315; Burns v. Railway Co., 50 Mo. 139; Huelsenkamp v. Railway, 34 Mo. 45, 37 Mo. 538; Ashbrook v. Railway Co., 18 Mo. App. 290; Gerstle v. Railway Co., 23 Mo. App. 361; Smotherman v. Railway Co., 29 Mo. App. 265; Tuley v. Railway Co., 41 Mo. App. 432; Woolery v. Railway Co., 107 Ind. 381, 8 N. E. Rep. 226; Railway Co. v. Bisch, (Ind. Sup.) 22 N. E. Rep. 662; Dewire v. Railway Co., (Mass.) 19 N. E. Rep. 523; Clark v. Railway Co., 36 N. Y. 137; Fleck v. Railway Co., 134 Mass. 481; Downey v. Hendrie, 46 Mich. 498, 9 N. W. Rep. 828; President, etc., v. Cason, (Md.) 20 Atl. Rep. 113; Beach, Contrib. Neg. p. 203 et seq.

In laying down these propositions, we have ignored plaintiff's age and experience, for, while he alleges in his petition that he did not know that it was dangerous and unsafe to ride upon the platform of the car, when he came to testify he said not a word about this. He was 12 years old, had ridden on street-cars some, had some education, and was a newsboy; and hence we may fairly assume that he knew it was safer in the car than on the platform, and, knowing this, the propositions announced by us will apply to him. Applying these principles to the facts of this case, can we say that plaintiff was so clearly guilty of contributory negligence he cannot recover? We think not. In disposing of this question, we must keep in mind that, as to passengers, the defendant corporation must be held to have been present in the person of the conductor, and what the latter knew and did the former knew and did. Plaintiff, according to his statement,...