175 Mo. App. 616 | Mo. Ct. App. | 1913
This is a suit for damages accrued to plaintiff on account of personal injuries through the
Defendant, an incorporated company, is a common carrier of passengers in St. Louis. Plaintiff boarded one of its street cars operated on the Iiamilton.Avenue Line, at Wellston, paid her fare and took passage to the ear barns at DeBaiiviere and Delmar avenues, where she contemplated transferring to another line for her home. The conveyance was one of those known as a “pay-as-you-enter car.” In street cars of this pattern, one enters by means of a step and platform in the rear of the box, where the conductor is stationed to collect fares; but the rear exit of such cars is through, another door beside the conductor’s box and by means of a step' adjacent, though distinct from that on which the entrance is made.
Plaintiff remained in the car, after entering it at Wellston, until it reached the terminus and entered the barn, where she undertook to alight therefrom, to.the end of going upon another ear on defendant’s Creve Coeur Line. The date was February second and the time about .five fifteen in the evening. It is said that darkness prevailed, though the lights in the car and car barn were aglow. Upon the stopping of the car in the bam, the conductor opened the door for the exit of passengers, and passed out to the company’s office, immediately preceding plaintiff in alighting therefrom. Plaintiff passed from her seat iu the car through the usual exit so opened by the conductor, and, as she placed her foot upon the step furnished for that purpose, she slipped and fell, to her injury, which appears . to be a serious and probably a permanent one. Plaintiff’s fall was occasioned by the accumulation of slush and ice and mud on the step provided for the exit of passengers.
It appears that considerable snow had fallen during the early morning of that day, but the storm had ceased before noon. Thereafter the sun shone brightly,
For defendant, the evidence tends to show that the particular ear in question operated only between these two points, and that the steps were inspected at either énd of the line and cleaned before returning. The conductor testified that he had the steps of'the car well cleaned of the accumulated slush and snow about fifteen minutes before plaintiff’s fall therefrom and immediately before starting from ’Wellston where she boarded it. Because of this testimony and because plaintiff said she observed no slush or ice on'the step in the rear of the conductor’s box where she entered, upon boarding the car at Wellston, it is argued the court erred in declining to direct a verdict for defendant. The argument proceeds on the theory that a common carrier of passengers discharges the full measure of its duty by inspecting its appliances immediately before starting on the trip .and removing slush or accumulated ice from the steps of the car at that.time.
It is true that a common carrier of passengers is not an insurer of their safety, and it is true, too, that the law does not cast upon such carrier the obligation of a continuous inspection of its cars while in transit, if it has made a careful one before starting. But though such be true, the obligation which the law does
The mere fact that plaintiff said she noticed neither mud nor slush nor ice upon the step as she boarded the car at Wellston is not conclusive against her right of recovery, for the reason that she did not enter over and employ the step from whence her exit was made and on which it appears ice, slush and mud had accumulated. It is true the two steps are adjacent and, indeed, formed by utilizing a continuous running board on the same level for both. Nevertheless they are separate and distinct, in that each accommodates a different use or compartment, as the one for ingress and the other for egress of passengers. Even though such be true, upon the hurry incident to one entering a street car over the rear step and rear platform around the conductor’s box to the door provided for the ingress of passengers on these new carriages known as the “pay-as-you-enter ears,” it is not at all probable that careful observation will be made with respect to the condition of the adjacent step provided for the passengers in course of exit from the same car. One’s thought is usually sufficiently occupied in making
It appears that some ten or twelve passengers alighted from the car at different places during the fourteen minutes consumed in transit from Wellston to the car barn, and while the evidence is not clear with respect to the matter, it is said in the brief that they passed through the identical exit and over the step- on which plaintiff afterwards slipped. Because of this and because of the fact that the conductor stated he removed the slush and ice before the car left Wellston, it is urged that no recovery may be allowed, for the reason such slippery accumulations as were on the step when plaintiff fell were obviously deposited there from the'shoes of the passengers so passing out before her. It is, no doubt, true that the evidence affords an inference of fact in favor of defendant to the effect suggested, but, in dealing with the question of a peremptory instruction acquitting all liability to respond for an'injury, such inference's may not be utilized against the injured party. [See Buesching v. St. Louis Gaslight Co., 73 Mo. 219.] Indeed, on this- question it is the duty of the court not'only to dispel fair inferences infavor of the defendant, as though they were rejected by'the jury, but to allow all of them in favor of plaintiff, in aid of the verdict, as if utilized by that tribunal on the'trial. Thus viewed, there is no evidence whatever that mud or slush' or ice were deposited on the step by the passengers who’ passed out over it before plaintiff, and it inay be that none was upon their shoes to-deposit fheré. It is certain we may not infer it.
' Though it may 136 true that, after having cleaned the step at starting, deféndant is not required to keep
But be all of this as it may, the evidence is that there was slush and mud and ice on the step when plaintiff passed out of the car and that she slipped thereon
Plaintiff’s first instruction is as follows:
“If you believe from the evidence that plaintiff was on or about the 2nd day of February, 1909; a passenger on one of defendant’s Hamilton avenue cars, then it was the duty of the defendant to exercise toward her the utmost care, skill and vigilance to carry her*627 safely to her destination, and also upon her arrival there, to provide a step which was reasonably safe and suitable for plaintiff to alight therefrom; and if you further believe from the evidence that the agents and servants of defendant in managing said car failed to exercise the utmost care, skill and vigilance, and that by reason thereof, ice and dirt were allowed to remain on said steps, and that said step thereby was not a reasonably safe and suitable step for plaintiff to alight, by the use of care and caution on her part, and that when said car was stopped at plaintiff’s designation and that in alighting from said car, by reason of the ice and dirt on said, step', plaintiff fell and was injured, your verdict will be for the plaintiff, providing at the time of said injury, plaintiff was exercising ordinary care and caution under the circumstances for her own safety.”
It is urged this instruction is too general in character; that is to say, that it authorized a verdict for plaintiff even though the jury may have believed the conductor removed the slush and ice from the step immediately before the car departed from Wellston and that the accumulation there was from the feet of passengers disembarking, without notice of the deposits to those in charge, while the car was en route, The instruction is general in character and omits to reckon with the facts in evidence as it should. Indeed it ignores evidence favorable to defendant. If the jury should believe the conductor cleaned the step immediately before leaving Wellston and that such accumulations of slush, mud and ice thereon which occasioned plaintiff’s injury on arriving at the car barns were deposited en route, through the exit of passengers over it, and those in charge of the car were not apprised of the-deposit on which the extreme cold operated during the fourteen minutes in transit, it is clear defendant should be acquitted of fault — that is, if those in charge of the car, though exercising high care, failed to
A point is made against plaintiff’s third instruction but we do not regard it of sufficient merit to warrant discussion. No prejudicial error appears and the judgment should be affirmed. It is so ordered.