Witzman v. Southern Ry. Co.

• Decision Date: 17 December 1895
• Citation: 131 Mo. 612,33 S.W. 181
• Parties: WITZMAN v. SOUTHERN RY. CO.
• Court: Missouri Supreme Court

33 S.W. 181

131 Mo. 612

WITZMAN v. SOUTHERN RY. CO.

Supreme Court of Missouri, Division No. 2.

December 17, 1895.

CONSTITUTIONAL LAW — STATUTES — CONSTRUCTION — TITLE OF ACT.

Act March 3, 1869, entitled "An act to regulate the sale of tickets, the rate of fare to be charged, and taxes and license to be paid by street railroad companies in the city of St. Louis," in providing in section 4 that "each car shall be furnished with such adjustable gates or guard" as shall effectually prevent passengers from getting on or off by the front platform, violates Const. art. 4, § 32, providing that no law shall relate to more than one subject, and that shall be expressed in its title.

Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Action by Christian Witzman against the Southern Railway Company for personal injuries. From an order setting aside a verdict for plaintiff, and granting defendant's motion for a new trial, plaintiff appeals. Affirmed.

Gerald Griffin and A. R. Taylor, for appellant. Lubke & Muench, for respondent.

BURGESS, J.

Plaintiff recovered a verdict before a jury in the circuit court of the city of St. Louis against defendant in the sum of $2,000 for personal injuries alleged to have been sustained by him while a passenger on defendant's car. He alleged in his petition that he was thrown off the front platform of the car and that "said car platform was in a defective condition, in that on the right-hand side of said car from which the plaintiff was so thrown there was no gate or safeguard or other appliances to prevent passengers being thrown from said car." The defenses were a general denial, and charges of contributory negligence. Over the objection and exception of defendant, the court, at the instance of plaintiff, instructed the jury as follows: "If the jury find from the evidence in this case that on the 29th day of July, 1892, the defendant was a street-railroad company in the city of St. Louis, and was using the railway and car herein mentioned for the purpose of carrying passengers for hire; and if the jury further find from the evidence that on said day the defendant, by its servants in charge of its cars, received the plaintiff as a passenger on defendant's car, to be carried as such passenger to Lafayette avenue and Ninth street, St. Louis, on defendant's line of railway; and if the jury further find from the evidence that defendant was carrying the plaintiff as such passenger on the front platform of said car; and if the jury find from the evidence that the plaintiff paid his fare to defendant's agent or servant in charge of said car, authorized to receive the same; and if the jury further find from the evidence that whilst the plaintiff was being so carried as such passenger, at or near the corner of Lafayette avenue and Eighth street, he was, by sudden and unusual jerk or shock of said car, thrown from said car and injured; and if the jury further find from the evidence that at the time of the plaintiff's injury there was no adjustable gate or guard on the right-hand side of the front platform of said car, to effectually prevent passengers from getting on or off said car by the front platform, while said car was in motion; and if the jury further find from the evidence that the failure by the defendant to have such adjustable gate or guard on said right-hand side of said front platform directly contributed to cause the plaintiff to be so thrown from said car and injured; and if the jury further find from the evidence that the plaintiff at the time that he was thrown from said car was exercising ordinary care, — then the plaintiff is entitled to recover." Defendant's motion for a new trial assigned, among other grounds therefor, the action of the court in giving the instruction quoted, and in holding that defendant was required to keep a guard or gate...