211 Mo. 88 | Mo. | 1908
— Plaintiff, a boy twelve years old, in attempting to board a street car, alleged in the petition to have been then owned and operated by the defendant corporations, was severely injured and sues to recover damages for his injuries, alleging that the accident was caused by the negligence of defendants’ servants in operating the car. The case stated in the petition is that the plaintiff, with two other boys, was sent by their employer to carry a letter-press to a person in the western part of the city; that to accomplish their mission it was necessary for them to take passage on one of defendants’ street cars; that
The transit company answered by a general denial and a plea of contributory negligence; the - United Railways, by a general denial.
At the close of the plaintiff’s evidence the court gave an instruction for each of the defendants to. the effect that the plaintiff was not entitled to recover; from the judgment of nonsuit that followed, the plaintiff appealed.
The testimony on the part of the plaintiff was to the following effect:
Plaintiff’s own account of the accident was: “I had orders to take the press out and there were three boys — but there was three of us to go out, and one of them had packages, and they sent out a boy that worked in the store to help us on the car and we came to the car with what we had, and one boy got on, and I was raising the press on the street car, and the conductor, before I could push it on the street car, he rang the bell and the car started, and it knocked the press off on my leg, and the car wouldn’t stop but kept going, and we waited for another car, and it stopped and we put the press on and took it out on Olive street ear to Jefferson avenue and then we got off the Jeffer
On cross-examination he said that he was not on the ear but “I was fixing the press on só I could get on. Q. Let me understand you; you put the press on and were still standing on the ground when the car started? A. I hadn’t got the press on entirely; I was fixing it so I could get on. . . . Q. How near on did you put it? A. We had it about half on, I guess. Q. Were you pushing it? A. I was pushing it on. ’ ’ The car did not stop after it started and the other boy who had at first gotten on the car jumped off and came back to plaintiff and they two hailed the next car, put the press on it and finished the errand on which they had been sent; the third boy went back to the store. It was an iron letter-press and quite heavy. The court asked the plaintiff how long it took to lift the press up and shove it on the ear, he answered, “Why, I don’t think it took us a minute, hardly. As soon as the car stopped one boy was getting on, and we pushed the press right up just as soon as it stopped.” He said it was about half on when the car started and he was pushing it. It was. about eleven o’clock in the forenoon. Frank Moran was one of the three boys, it was he who got on ■the platform. His testimony was substantially the same as that of the plaintiff on the points stated; he testified that as soon as he got on the platform he went around the iron bars that were there, to help pull the press on the platform, but before he got around
The rest of the plaintiff’s testimony as set out in the original abstract related to the character of the plaintiff’s injuries, of which it is sufficient for the present to say it tended to show that, although the plaintiff was able to accomplish his errand, on that day, yet soon after the injuries developed seriously and in consequence the plaintiff has endured considerable suffering and impairment of his health and strength.
The sole question is, was the plaintiff entitled to have his case submitted to the jury?
I. The first point urged by respondent is that there was no evidence tending to prove that the transit company was operating the car, and, according to the original abstract, that point is well taken, but the appellant has by leave of court filed an additional abstract in which the needed evidence on that point is supplied. In the additional abstract it is shown by the testimony of the then president of the transit company that that company was operating the street railroad at that time. There was no evidence, however, tending to show that the United Railways Company had any interest in the railroad or in its operation. The instruction in the nature of a demurrer to the evidence as to the United Railways Company was therefore correct.
II. “Was there evidence tending to show negli- " gence on the part of the conductor and motorman, or either, that caused the plaintiff’s injuries?
In judging the conduct of the defendant’s servants in this respect it is necessary to ascertain what the relation between the defendant and the plaintiff was at the instant of the accident, because that relation determines the duty, and the performance or neg
The defendant’s theory is that the evidence does not tend to show that plaintiff was attempting to become a passenger on the car, but only that he was “attempting to put a heavy letter-press upon the platform,” he remaining on the ground, and, judging from the remarks of the learned trial judge in ruling on the instructions, that was his opinion also; he said: “Gentlemen there is no negligence whatever of a wilful character shown to have been committed by the defendants in this case. Whatever negligence, if any, there is, is by way of mere inadvertence, an omission to perform a duty. There was no duty on the part of the railroad company to either load or see that this, press was safely loaded on the rear platform of the car.”
It is true the boys were attempting to piit the letter-press on the platform, and if that was all that could fairly be inferred from their action the defendant’s theory would be correct. But was that all that their action indicated? A street car is designed to carry passengers, it is not designed to carry freight, and although by common experience we know that passengers in street cars do frequently carry packages in their hands, yet that is a mere incident, it is not the purpose for which the car is operated. When this car turned from Olive street into Fourth the motorman and conductor saw these three boys signaling to stop; unless they had supposed their signal meant that they purposed to become passengers they would not have obeyed it, and, when they saw two of the boys carrying the letter-press to the car and moving as if to put it on, if it had occurred to them that the boys were only aiming to ship the press as freight on the car, they would not have stopped, because they knew that they were not engaged in the transportation of freight,
The natural inference to be drawn from the act ■of the plaintiff in this instance was that he intended and was attempting to become a passenger on the car, that the conductor saw him, saw what he was doing
• It is argued in support of the ruling of the trial court that the evidence shows that the plaintiff had hold of the letter-press and that when the car started he, holding on, pulled it off. The plaintiff testified that he was pushing the letter-press to get it further on. The boy who had gotten on the car and was going around the iron bars on the platform to help pull the press on, said: “He (the plaintiff) had it holding with one hand and by swinging it it hit him in ^ the leg.” On cross-examination he said: “It was half on, and Lemuel [the plaintiff] had hold of this end loading it on; he was pushing it on and I was supposed to go around and pull it over. ” It is not probable that either boy could be entirely accurate as to the position' of the plaintiff’s fingers on the letterpress. But assuming that the plaintiff’s fingers were gripped around the handle when the car started, it is not a necessary conclusion that he pulled it off. Even in pushing, it would he natural to grip the handle and if, while it was gripped, the car started when he was hot expecting it to do' so and before he had warning to loosen his hold and while the letter-press was only half on in an unbalanced condition, the accident was the result of the starting of the' car, at least that is an inference that the triers óf the fact might reasonably have drawn. If there was anything in the evidence
It is impossible to give an exact formula prescribing the acts necessary to constitute the relation of carrier and passenger; only general principles can be stated, and each case must be judged by its own facts. We hold that the evidence in this case tended to show that the plaintiff intended to board this car to be carried as a passenger, that he was attempting to carry that intention into effect, that the defendant’s servants in charge of the car saw, or if they had exercised the care incumbent on them would have seen, what the plaintiff was doing and would have understood what his purpose was, and by suffering him without objection or warning to do what he was doing consented to receiving him as a passenger under those circumstances, and the relation of carrier and passenger was thereby created. And we hold that the starting of the car at the instant and. under the circumstances was negligence for which the defendant would be liable. We mean of course that such would be the legal result if the facts were as the evidence tends to prove they were.
Defendant contends that there is a variance between the negligence as pleaded and the case made by the proof, but we do not so understand it. The petition alleges the negligence substantially as the evidence tends to prove.
The court erred in. giving the instruction in the nature of a demurrer to the evidence as it concerns the St. Louis Transit Company. The judgment is reversed and the cause remanded to be retried in accordance with the views herein expressed.
