141 Mo. App. 708 | Mo. Ct. App. | 1910
This action was instituted by respondent in the circuit court of Jasper county, on the 12th day of September,-1908, to recover from appellant the sum of $10,000, on account of the death of respondent’s husband, the Reverend Simpson Ely, caused, as the plaintiff claims and alleges, by the negligence of appellant.
• The petition alleges that the defendant was at the times mentioned therein, a corporation existing by virtue of the laws of this State, and as such, was operating a street or electric railroad in the city of Joplin, as a common carrier of passengers; that on the 5th day of July, 1908, the said Simpson Ely entered one of defendant’s cars and'became a passenger thereon, to be
The answer admitted that the defendant was a corporation at the time mentioned in the petition, and that as such, it was at-said time, operating a street railroad in Joplin as a common carrier of- passengers, and that on July 5, 1908, the deceased was a passenger on one of defendant’s cars, and denied all the other allegations of the petition; The answer further alleged that the injury was caused solely by the negligence of the deceased in riding on the platform of the car when there was, at the time, plenty room in the car, and that the deceased either attempted to get off the car when the same was running, and without the knowledge of defendant’s servants, or that through inadvertence or dizziness, he fell from the platform of the car.
The trial was before a jury, on January 15, 1909, resulting in a verdict in favor of the plaintiff for the sum of $2000, and a judgment was rendered thereon, from which the defendant appealed to this court.
Main street in Joplin runs north and south through the city; Twentieth street runs east and west, and is in the southern part of the city; Moffett street runs north and south, west of and parallel with Main street;
Just before the car reached Seventeenth street, which was two blocks south of Fifteenth street, the conductor gave a signal to stop the car at Seventeenth street. At the time this signal was given, the conductor thought the car was nearing Sixteenth street, which was the next street north of Seventeenth street. The motorman, in obedience to the signal, checked the speed of his car for the purpose of stopping at Seventeenth street. But before the car stopped, the conductor, discovering his mistake, gave the signal to go ahead, and which signal was obeyed by the motorman, and the car proceeded without making a stop at Seventeenth street.
There is a conflict in the testimony between the witnesses for the respondent and the appellant, as to the management of the car at the time of the accident. The plaintiff’s witnesses testify that after the motorman had checked the speed of his car, in obedience to the first signal of the conductor, that when the second signal was given to go ahead, the car started quickly and with a sudden jerk. None of the witnesses for the plaintiff were passengers on the car. The witnesses
The plaintiff’s petition and her instructions, are based upon the theory that her husband passed out upon the back platform of the car fon the purpose of alighting therefrom when, he reached his destination, and that while he was on the back platform, said car was started with a sudden and unusual jerk, whereby the deceased was caused to lose his hold or balance on said car and to be thrown to the street or pavement. Undoubtedly if the conductor knew, or by the exercise of the care required of a carrier of passengers, could have known,' that the deceased was approaching his place of transfer, and that he was leaving his place in the car and going to the platform and steps for that purpose, then the company would owe to him the duty required of such companies in receiving and discharging passengers from their cars. The duty of a motorman in the management of his car at a point where passengers are about to get on or off the car, is different from the care required when he is operating his car at other places. It is a well-known fact that passengers do not wait for the car to be brought to a standstill before leaving their seats and going to the platform for the purpose of alighting. These facts the company must take knowledge of and cannot plead ignorance thereto. On the other hand, if a car should stop in the middle of a block or at a place where it is not expected a passenger would attempt to leave the car, then the degree of care in regard to the sudden starting of the car is not the same as where the car has stopped for the purpose of receiving passengers..
In this case it stands admitted that the deceased at no time entered the car, although there was plenty
The true test of the liability of the defendant in this case is not to be determined by the rule regarding the duty of the' company to a passenger who is leaving the car as it approaches his destination, hut the test of liability in this case is to be measured by the degree of care required of the company to pasengers at other points than nearing their destination.
The evidence in this case discloses that the rear platform of the car was enclosed on the west and south side, and the only opening was at the steps on the right side where passengers were received and discharged. A through passenger riding on the back platform was not in much danger of being thrown from the side of the car by reason of any sudden starting of the car on a straight track. But if the deceased, although not at his destination, was passing from the platform down the steps with the knowledge of the motorman or conductor, then it was their duty to exercise a high degree of care in the management of the car so that he would not be thrown therefrom by any extraordinary movement of the car. [Murphy v. Railroad, 125 Mo. App. 269, 102 S. W. 64.]
Instruction No. 1 given on behalf of the plaintiff is misleading, and submits matters concerning which there was no testimony. One paragraph of the instruction reads: “And if the jury find from the evidence that as said car approached said destination, the said Simpson Ely passed out upon the back platform of said car, for the purpose of alighting from said car when
This part of the instruction immediately follows the part above quoted, and all framed on the theory that the deceased, at the time of the accident,"was passing from a place in the car to the back platform as the car was nearing his destination, and while he was in that position, the servants of the defendant carelessly and negligently slackened the speed of the car, and carelessly and negligently applied the power or released the brakes, causing the car to start in an unexpected manner, resulting in the death of plaintiff’s husband.
It was evidently the intention of the plaintiff to bring her case within the principles announced in Nelson v. Railroad, 113 Mo. App. 702, 88 S. W. 1119, but that case announces the doctrine applicable to cases wherein the passenger is abont to arrive at his testination. In this -case the passenger was not at his destination, and in such cases, in order to hold the company
If the conductor had called Fifteenth street and the car stopped prematurely, but near said street, then the deceased would have had the right to assume that the car had stopped for the purpose of letting him alight therefrom, and it would have been the duty of defendant’s conductor, after having called the street, to have known whether the deceased was preparing to alight, and not have started the car while he was in the act of so doing. [Hufford v. Railroad, supra.] And it could not be said that the deceased would have been guilty of negligence in taking a position on the back platform under such circumstances. [Wellmeyer v. Transit Co., 198 Mo. 527, 95 S. W. 925; Heinze v. Railroad, 117 N. W. 385.]
The above authorities state the almost universal rule, that if a passenger is about to reach his destination and as the car is stopping he leaves his place and proceeds to the platform or steps for the purpose of alighting when the car has stopped, then if those in charge of the. car start the same with an unusual and sudden jerk, and thereby the passenger sustains injuries, the company is liable. On the other hand, the law is as well settled, that the mere starting of a car with a sudden jerk at a time when those in charge of the car did not know, or had no reason to know, that a passenger is about to alight, is not sufficient to make
In the case of Peck v. Traction Co., 131 Mo. App. 134, 110 S. W. 659, the court said: “It seems to be clear that although a passenger may be improperly engaged in' the act of alighting from a street car before it ’has come to a stop, yet it is culpable negligence in the conductor knowing what the passenger was doing, to cause the car to be suddenly started forward with such suddenness and force as to throw him to the ground.”
It is true that under the degree of care required by the carrier of passengers, that the company may be held liable in an action for damages by a passenger on account of injuries received by the violent or extraordinary starting of the car with a jerk, but the character of the act between this and the case where a passenger is attempting to alight at his destination, are not the same. There is hardly a car or a railroad train but what there is a certain amount of jerking or sudden movement, in the operation thereof.
As said in Etson v. Railroad, 68 N. W. l. c. 298: “It is a natural law that inertia is not instantly overcome, and that a start, or accelerated motion, tends to throw down one riding upon a car.” These things the passenger expects in ordinary travel, but when the car is about to stop for passengers to alight, or after passengers have entered the car, then it Is the duty of the company to exercise the highest possible degree of care and foresight consistent with the operation of the car, to see that a sudden or violent jerk does not occur.
We are of the opinion that in order for the plaintiff to recover in this case, it will be necessary to show something more than “an unusual or unexpected jerk of the car,” as that term is understood when a car is
It will not be necessary to notice the other questions urged by appellant for a reversal of the judgment. We are asked by appellant to reverse the cause without remanding it. Under the petition as it is now framed, this request should be granted, but under our liberal statutes regarding amendments, as interpreted by the courts, we are of the opinion that the plaintiff may be able to amend her petition so as to present the case on the theory above indicated, and accordingly the judgment will be reversed and the cause remanded.