Baskett v. Metropolitan Street Railway Co.
101 S.W. 138
Mo. Ct. App.
1907
Check Treatment
BROADDUS, P. J.

The plaintiff claims to have been injured on the 18th of January, 1905, as the result of the negligence of defendant while he was a pаssenger on one of the defendant’s streets cars, fpr which he *727claims damages. His evidence was that he hoarded the сar in question at Eighth and Walnut streets in Kansas City, Missouri, and took a.position on the rear platform because the car was in a crowded condition; that the conductor made no objection to his riding on the platform; that after the car had gone about a half mile, and when it arrived at Woodland avenue, at which point there is a curve in the defendant’s tracks, it suddenly ‍​‌‌​​​​‌‌‌‌‌‌​​‌‌​​​​‌​‌‌‌‌​‌‌​​​‌‌​​‌​‌​‌​‌‌​​‌‍lurched forward, which had the effect of throwing him off and onto the street. His testimony was that he was exercising ordinary care. The defense was a general denial and a plea of contributory negligence: the contention of defendant being that plаintiff was guilty of negligence in riding on a crowded car, whereas he should have waited for another. The plaintiff recoverеd judgment for $1,250 and defendant appealed.

The question arising on the appeal is the alleged error of the court in giving аnd refusing instructions. Instruction two given for plaintiff is as follows: “You are instructed that it is not necessarily negligence for a man to entеr and ride on the rear platform of an electric car, even though the same is crowded at the time he enters and whilе he is riding on the same; but the question of whether or not such passenger is negligent, depends on the circumstances. And if you believе from the evidence that defendant owned and operated the car in question and that plaintiff took passage thereon and that such car was crowded with passengers, and that it stopped when in such crowded condition and plaintiff and one or more persons thereupon boarded said car as passengers without objection by the defendant, then plаintiff was not guilty of negligence in boarding said car and remaining thereon in the position in which he claims he was when injured unless the dangеr in so doing was so obvious that a reasonably prudent person would have refrained from d oing so, and unless after he boarded said'car he failed to exercise such care as would *728have boon exercised by an ordinarily prudent person under the same or similar circumstances.” The objection to the instruction is that it took away from the jury the question whether plaintiff was guilty of negligence in riding on an overcrowded ‍​‌‌​​​​‌‌‌‌‌‌​​‌‌​​​​‌​‌‌‌‌​‌‌​​​‌‌​​‌​‌​‌​‌‌​​‌‍car. If the instruction is what defendant claims it to be, under all the authorities it ought not to have been given. But a careful examination has convinced us that defendant is mistaken as to the effect of said instructiоn.

But the more specific objection is made that it is erroneous in that it omits an important element, which, if it did not exist, plaintiff was not entitled to recover, aúz. : That at the point where plaintiff got aboard, it stopped for the purpose of talcing on passengers. The objection Avould probably be well takеn if as a matter of law it is negligence for a person to board and ride on the platform of a car, but such is not the law. It hаs been held that it is not ‍​‌‌​​​​‌‌‌‌‌‌​​‌‌​​​​‌​‌‌‌‌​‌‌​​​‌‌​​‌​‌​‌​‌‌​​‌‍negligence for a passenger to ride on the platform of a steam railroad when the comрany failed to provide room inside sufficient for the accommodation of its passengers. [Choate v. Railway, 67 Mo. App. 105.] In that cаse, however, the statute provided that if a passenger violated a rule of the company forbidding passengers to ride on the platform of its cars, except Avhen it failed to provide sufficient room inside, he could not recover. But genеrally speaking, the court said: “The mere circumstance, then, that plaintiff Avas, at the time, on the platform, will not be held as сonclusive proof of negligence on his part.” And the principle is announced in Kreimelmann v. Jourda, 107 Mo. App. 64. And in Gerstle v. Railway, 23 Mo. App. 361, it is held that, ‘It is not negligence, as a matter of law, that a passenger should be or remain on the platform of a car for a time, ‍​‌‌​​​​‌‌‌‌‌‌​​‌‌​​​​‌​‌‌‌‌​‌‌​​​‌‌​​‌​‌​‌​‌‌​​‌‍though there be seats inside, in the absence of a regulation against it . . .”

If it was not negligence as a matter of law for plaintiff to ride on the platform of the car, for a similar *729reason it was not negligence as a matter of law for him to have boarded it without special invitation to do so. The court tаkes judicial notice that in the operation of street cars they stop at street crossings for the purpose of lеtting off and taking on passengers, and that such a stoppage is in ‍​‌‌​​​​‌‌‌‌‌‌​​‌‌​​​​‌​‌‌‌‌​‌‌​​​‌‌​​‌​‌​‌​‌‌​​‌‍the nature of a general invitation to all persons who desire passage to get aboard, whether the car be crowded or otherwise. And if a passenger boards a car at such crossing while crowded, and takes a position on the platform, it must be presumed that he does so, with the consent of thе conductor.

And we know of no reason why a passenger may not board a car while it is standing although it be not a usual place for taking on and letting off passengers, if there are no circumstances going to show that the act was negligent, for it is well knоwn that cars do stop to let off and take on passengers. at such places, although it is not usual or ordinary to do so. And in such cases it is the duty of the conductor to see and know that persons are getting on or off his car. But as the plaintiff got on аt a street crossing where passengers usually get on and off the cars, that question is not pertinent to this inquiry.

Objection is also made to instruction one given for plaintiff for the reason that he is permitted to recover on the ground of excessive spеed when there is no allegation in the petition that the car was going at an excessive rate of speed. It is true therе is no specific allegation in that respect, but there is a general allegation in the petition that the injury was caused by reason of defendant’s negligence, “in the construction, maintenance and operation of said line and car.” A general allegation of negligence is at least sufficient unless objected to before trial. [Johnson v. Railroad, 104 Mo. App. 588; Conrad v. DeMontcourt, 138 Mo. 311.]

The cоurt refused to give instruction nine requested by defendant. The same instruction in almost identical *730language was given in defendant’s instruction numbered five, as much so as if the one had been copied for the other line by line and word for word.

We find no error in the record. The cause is affirmed.

All concur.