Woas v. St. Louis Transit Co.

• Decision Date: 17 October 1906
• Citation: 96 S.W. 1017,198 Mo. 664
• Parties: WOAS v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

96 S.W. 1017

198 Mo. 664

WOAS v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 2.

October 17, 1906.

1. CARRIERS—PASSENGERS—INJURIES—NEGLIGENCE— EVIDENCE—PRESUMPTION.

In an action against a street railway by a passenger for injuries received through being struck by a missile thrown by a bystander, no presumption of negligence on the part of the defendant arises from the mere fact of the injury.

2. SAME—QUESTION FOR JURY.

In an action against a street railway by a passenger for injuries received by being struck by a missile thrown by a bystander, plaintiff testified that he was seated near the front of the car, and that as the car approached the corner, where by ordinance it was required to stop, he saw a man standing between the tracks, making violent motions with something in his hands. His next recollection was of transactions

after the injury. Another witness testified to seeing some one throw a missile through the front vestibule of the car. Held insufficient to take to the jury the question of the company's negligence.

3. SAME—ADMISSIBILITY.

In an action against a street railway by a passenger for injuries received through being struck by a missile thrown by a bystander near a street corner, where the car was by ordinance required to stop, plaintiff's evidence, offered to show prior assaults on the car for failure to stop at such corner, was not so framed as to exclude sporadic assaults occurring during a period of years, or as to show a frequent occurrence thereof, indicating future repetition. Held properly rejected as too indefinite and not bringing home to the company facts indicating danger to its passengers.

Appeal from St. Louis City Circuit Court; John A. Blevins, Judge.

Action by Albert F. Woas against the St. Louis Transit Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Warren D. Isenberg and Fred R. Suits, for appellant. Boyle & Priest, for respondent.

GANTT, J.

On the 3d of March, 1903, plaintiff filed in the circuit court of the city of St. Louis an amended petition, which in substance stated that on the 14th of April, 1902, the defendant was a public carrier of passengers for hire, and as such controlled and operated a street railway along and over Easton avenue, in the city of St. Louis, a street running in an easterly and westerly direction, and on said day plaintiff took passage on one of defendant's east-bound cars at or near Clara avenue, and paid his fare, and was accepted as a passenger on said car. While plaintiff was a passenger on said car, the defendant, its agents, and servants failed and neglected to exercise such care and vigilance and caution as was their duty to do towards plaintiff, and was negligently, improperly, and unlawfully conducting itself; that the plaintiff became exposed to great danger and in consequence of such negligence and unlawful conduct on the part of defendant, its agents, and servants, and was greatly and permanently injured in and about his face and on the right side thereof; that before the said car reached King's Highway, a street running in a northerly and southerly direction across said Easton avenue, some person took a position upon the track of the defendant upon which said car was running, and made violent and threatening motions at and towards the front of the car and at and towards the motorman in charge and running said car on which plaintiff was a passenger, and said motorman saw, or could have seen said person's threatening motions, attitude, and conduct, and could have reasonably anticipated, in view of the circumstances, that the car was in danger of being attacked, and the passengers thereon liable to be injured, but notwithstanding said threatened danger the said motorman took no steps to prevent an attack upon said car and took no steps to protect the passengers thereon from said danger, but threw the power on said car in full force and apparently tried to run over the said person on the track; that, when the car was in close proximity to the said person on the track, the said person threw a rock or missile of some hard substance through the front of said car, and said missile struck the plaintiff in the face with great force and violence, permanently injuring the vision of his right eye and paralyzing some of the muscles on the right side of his face, whereby plaintiff has undergone and will undergo much pain and suffering both mentally and physically, and caused plaintiff to pay out large sums of money for medicine, medical care and attention, and lose much time from his work; that there was in force and in effect at that time an ordinance which defendant was bound to obey, which provided that east-bound cars should be stopped on the east side of intersecting streets to take on passengers when requested, signaled, or motioned by any person standing on said appropriate corner desiring to take passage on such cars. The petition sets forth the ordinance (section 1761 of article 6 of Ordinance No. 19,991 of the city of St. Louis, approved April 3, 1900), and it is further alleged that sections 1762 and 1772 of said ordinance provide a penalty for the violation of section 1761 for failing to stop said cars upon the request of persons desiring to take passage thereon. It is then alleged that a number of people waiting on the east side of King's Highway and on the south side of Easton avenue desiring to take passage on the car of which plaintiff was a passenger signaled the motorman to stop said car so that they might take passage thereon, but the said motorman and servant therein in charge of said car failed, neglected, and refused to stop the same; that the person who threw said missile was provoked thereto by the unlawful conduct of the defendant, its agents, and servants in failing to stop said car at King's Highway; that the servants of the defendant then and there could have reasonably anticipated the happening of the said injury to the plaintiff; that at divers times and at sundry other occasions prior to the injury to the plaintiff other persons had hurled missiles at the cars of the defendant on account of the failure of the servants of the defendant to stop said cars as required by said ordinance and that such persons had been prosecuted for throwing missiles at said street cars; that plaintiff had been damaged in the sum of $10,000, for which he prayed judgment.

The answer was a general denial of each and every allegation in the petition. The cause was tried before the court and a jury on the 24th of November, 1903, and at the close of the evidence the jury returned a verdict for the defendant. At the commencement of the trial the defendant objected to any testimony under the petition on the ground that it did not state facts sufficient to constitute a cause of action, and because the petition showed on its face that whatever injury was sustained by the plaintiff was due to the wrongful act of a stranger to the defendant, over whom defendant had no control whatever, and there was nothing in the pleading to render the defendant responsible for the wrongful act of the said stranger. The court overruled this objection and the defendant duly excepted. The plaintiff then offered to prove that prior to the 14th of April, 1902, missiles had been thrown at the cars of the defendant company on account of the failure of the defendant's servants to stop its cars and allow passengers to board the same, and also to prove that prosecutions had been had against such persons for such unlawful conduct, all of which testimony the court excluded at the request of the defendant, to which action of the court the plaintiff excepted. Plaintiff next offered in evidence section 1761 of the municipal code of St. Louis which was pleaded in the petition, and also section 1762 providing a penalty for a violation of section 1761 and also the acceptance of the provisions of said ordinance by the defendant company.

The plaintiff in his own behalf testified that he was a linotype operator, and that on the 14th of April, 1902, he took passage on an east-bound Easton avenue car, about a quarter to 6, to go to his work. He paid his fare and took his seat on the right side of the car, fronting east on the second seat from the front of the car; that, when the car approached King's Highway, he noticed a man standing in the middle of the street with something in his hand, making violent motions towards the car. The motorman was standing on the platform in front of the car handling his motor. The next thing that the plaintiff remembered was he was on the operating table, and the doctor was taking the glass and broken bones out out of his face and teeth. He testified to the wages he was earning before he was hurt and to the amount of his physician's bills, and to the length of time he lost from his work on account of the injury. He did not see the man throw anything. He only knew that, when he came to his senses, he was on the operating table in Dr. Parker's office. Dr. Rice testified to the serious nature of the plaintiff's injuries; that, when he reached the plaintiff at Dr. Parker's office, Dr. Parker had already bandaged him up and sent him home. The cheek bone was fractured and the muscles were partially paralyzed, so he could not close his jaws. John Jaeck testified that he was a member of the police force and saw a person throw something on the evening of the 14th of April, 1902, at an Easton avenue east-bound car near King's Highway. He could not swear that it was a rock, but, whatever the missile was, it struck the vestibule and broke the pane of glass in front of the vestibule, but whether it struck any person or not he could not say. This was the substance of the plaintiff's evidence. The court at the request of the defendant instructed that under the pleadings and the evidence the plaintiff was not entitled to recover, and thereupon the jury returned the verdict for the defendant. Within four...