275 F. 881 | 8th Cir. | 1921
Lead Opinion
This action was brought to recover damages for personal injuries received by Fels while he was attempting to get aboard one of defendant’s street cars, caused, as he alleged, by the sudden starling of the car. There was verdict and judgment against him. He saw one or two persons standing at a street crossing in East St. Louis as if they were waiting for an approaching car, and believing it would stop he ran to catch it. It did stop and those who were waiting got aboard. As Eels ran in the direction the car was going he left the sidewalk and went into the street and the car passed him, so that he was behind it when it stopped. But he continued to run and
All of the facts describing the occurrence, including those already stated, were obtained from Fels and his two witnesses, -the latter looking on at some distance from the car. He testified that he saw but one waiting passenger who got aboard while he was thirty or forty feet away, that the car did not start until he had run that distance, that he was running right next to the track.
“When I got there I just got hold of the handle bar and was coming up with my foot, and that is as far as I know. I fell; they throwed me over, and the car went on. * * * I grabbed the handle of the car and was coming up with my foot, but whether I got my fodt on the steps or not I don’t know. * * * I never got on there, I don’t think. * * * There is a bruised place on my leg here which must have struck the step.”
One of his witnesses testified that two persons boarded the car, that the car was standing still when Mr. Fels got hold of the handle bar, that when the last passenger got on the car Fels was five or- six feet away, still running after it, and the car seemed to start just as Fels got hold of the handle bar. The other one, that only one person boarded the car, that Fels came down the road running and grabbed hold of the right handle bar, and just as he did he fell fiat to the ground.
“He grabbed and got bold of tbe right handle bar, and I couldn’t say now whether his • foot was' on or not, but down he went. * * * Q. And then you say just as he grabbed it the car started and he fell, is that right? A. Yes, sir.”
It thus appears that when the car stopped Fels was not waiting to enter it, was thirty or forty feet behind it and running to catch it, and did not reach the entrance at the side of the car until it.was starting, or an instant before that, and that no one in charge of the car saw him. He must have come up to the entrance suddenly and grabbed the handle bar hurriedly, and was instantly thrown down, before he could
“Yet one tosí; applies alike to all, and that is, the relation can only be created by contract between the parlies, express or implied. There must always be an offer and request to be carried on one side, and an acceptance on the other.”
The principle is stated again in Purple v. Railway Co., 114 Fed. 123, 51 C. C. A. 564, 57 L. R. A. 700, in this way:
“A contract is indispensable to the relation of carrier and passenger. " * * This contract of carriage may, it is true, bo express or implied, but if it dons not exist in either form the relation of carrier and passenger cannot have been created.”
And in O’Mara v. Transit Co., 102 Mo. App. 202, 76 S. W. 680:
“The right o£ a person to carriage as a passenger on a street ear rests on a contract, the essential ingredients of which are ¡.hat the person must signify his intention to take passage, either by words or conduct, and the car men must assent, by words or conduct, to his becoming a passenger.”
Affirmed.
Dissenting Opinion
(dissenting). My dissent is necessary, as I think there was error in giving and refusing instructions to the jury. Concededly, the plaintiff was injured at a street crossing where this car and cars usually stopped for passengers to get on and off. There was the implied invitation to passengers subject to their acceptance. The conductor had the duty, before giving the signal to start, to look and see whether passengers were safely on board. Where an invitation is given for the purpose and one attempts to go upon the steps to take passage, the relation of passenger and carrier is made out. 3 Thompson, Neg. § 3514; Cohen v. West Chic. St. Ry. Co., 60 Fed. 698, 9 C. C. A. 223; Dudley v. Front St. C. R. Co. (C. C.) 73 Fed. 128; St. Louis S. W. Ry. Co. v. Wainwright, 152 Fed. 624, 82 C. C. A. 16; Memphis St. Ry. Co. v. Huggins, 215 Fed. 37, 131 C. C. A. 345; Devoy v. Transit Co., 192 Mo. 197, 91 S. W. 140.
It is true the evidence tends to show that the plaintiff attempted to board the car at the time it was starting. No complaint is made of the
But the trial court gave the jury this rule:
“If plaintiff did get hold of the car before it started, but the persons in charge thereof did not know of the fact, and could not have known of it by the exercise of ordinary care, and he gave no notice of his intention to become a passenger, and had not timely presented himself, then he cannot recover.”
And again:
“If you shall find * * * that plaintiff ran and placed his hand on the handle of the car before it started, and that thereafter, or thereupon, tho car started and caused plaintiff to fall, and in this connection, if you shall further find “ * * that neither tho motorman nor the conductor saw plaintiff when he got hold of the handle of the car, and that they did not know, and by the exercise of ordinary care could not have known or observed, that plaintiff was abont to board the car, then you ought to find for defendant.”
These instructions are deemed to be erroneous, for the plaintiff might have become in fact a passenger before the car was started, as the evidence substantially tends to show, and, if so, then it would not be questioned that by uniform authority he was entitled to the higher practicable degree of care for his safely, and not merely ordinary care.
Clearly, it seems to me, the plaintiff should be awarded a new trial.