211 Mo. 139 | Mo. | 1908
— The plaintiff instituted this suit in the circuit court of the city of St. Louis, on the 18th day of November, 1904, against the defendant to recover the sum of $5,000 damages for the alleged negligent killing of her husband, Henry O. Gage.
The petition in substance alleges:
That plaintiff was a resident of the city of Louisville, State of Mississippi, and that she was the widow of H. C. Gage, the deceased, who during his lifetime was also a resident of Mississippi. That on the 8th day of October, 1904, the deceased was in the city of St. Louis, visiting the World’s Fair; that when on a Market street ear, going west, en route to the World’s Fair Grounds, the deceased became sick at his stomach and left his seat in the car and went to- the back platform thereof, for the purpose of vomiting; that in the act of vomiting he placed his head over the railing of the back' platform of the car next to south track, and that while he was in such position, and in the act of vomiting, another car of the defendant on the said south track, going east,, passed said car on which deceased was riding, and negligently struck him in the head, causing him injuries from which he died.
The acts of negligence charged are that the conductor on said car was guilty of carelessness in not warning the deceased of the danger in placing his head out of said car on the back platform thereof, from passing cars; that the said conductor saw the deceased at the time of the accident, and failed to notify and warn him of his danger.
Another act of negligence charged is, that the defendants were guilty of carelessness in failing to construct and maintain the guard railing on the back platform of said car, on the side next to the south track,
Another act of negligence charged is that the defendants were guilty of carelessness in constructing and maintaining the double tracks, on which its cars were operated, at the place where the injury occurred, so close to each other, and their cars of such width, that said cars going in opposite directions on said tracks could not pass each other without danger to passengers.
It is finally alleged that from the effects of the injuries plaintiff’s husband died on the 12th day of October, 1904, at the City Hospital, in the city of St. Louis, and plaintiff claims damages in the sum of five thousand dollars.
A motion was made by the defendant to strike out that part of plaintiff’s petition which charged the defendants with negligence in failing to construct and maintain guard railings on the back platform of said •car, of sufficient height to protect passengers from passing cars. The trial colirt sustained this motion, and struck out that part of plaintiff’s petition. To which action of the court in so ruling plaintiff duly ■excepted. Thereafter, on April 3, 1905, plaintiff filed' h.er second amended petition, which sets out substantially the same acts of negligence as the first amended petition, excepting the portions stricken out on motion.
The defendant, the United Railways Company, ■filed an answer of general denial to the second amended petition; the St. Louis Transit Company, in its answer, stated that the injury sustained by the deceased was caused by his own negligence, in extending his head over the side of the car, next to the other track on which cars were being operated in opposite direc
On the issues thus made the cause was tried on the 27th day of May, 1905, before the Hon. Warwick Hough, and a special jury, and resulted in plaintiff taking an involuntary nonsuit, with leave to file a motion to set the same aside. The said motion was filed' at the proper time, and was overruled by the court, and thereafter the plaintiff by proper steps has perfected her appeal to this court.
In order to sustain the issues presented by the pleadings, plaintiff introduced the following testimony:
John Geekie, a witness for plaintiff, testified that he was a passenger on the Market street car, on which Gage was killed, and saw the accident. That he was standing on the back platform; that he saw Gage, who was a passenger on the car, sitting about the center of the car. That he- got up and walked out on the back platform, appeared to be sick, and leaned over the side railing and began to vomit. That he straightened up and leaned against the back of the car; remained in this position a few minutes when he leaned over and began to vomit again, and just at that instant the other car struck him. That the conductor was standing on the back platform just behind him. That the •car stopped when it got up to the crossing and he and the conductor picked the deceased up. That the eastbound car did not stop. The sort of car on which they were riding was one of the large new cars that the Transit Company had just acquired. That the back platform had two iron bars across it. That the ears used on the line at the time of the accident were the same as the cars used now. When Gage came out of the ear witness was leaning up right against the iron bar. The conductor was on the north side of the oar just behind witness looking west. That the rail
This question was asked the witness:
“Q. Isn’t it the fact that you stated this at that inquest: ‘Where were you? A. On the back platform. This man was in the car, and he came out and seemed to be sick, and he placed his hands on the handrail and he vomited, and he straightened up, and a second or so before the east-bound car came along he put his head out and the car struck him. It was done in an instant. Q. Were there many on the platform? A. Myself, a little boy and the conductor. Q. Any conversation pass between him and anyone? A. No-, sir. Q. Did he make any statement? A. No, sir. Q. Didn’t say why he was sick or anything about it? A.
“Mr. Jamison: I object to that. He reads what purports to be the testimony, and he does not contradict anything that he said, and he tells the same story here, so far as I am able to discover, and they do not impeach their own witness.
“The Court: He is asked whether he said, in addition to that, that the conductor hollowed, ‘Look out, ’ and he has answered that question that he thought he did state it.
“Mr. Williams: Yes, sir; that he thought he did; now I ask him is not that all the testimony he gave.
“The Court: You asked if that is all he stated there, or whether he stated the other?
“Witness: That is all that I must have stated. I don’t recollect. I answered every question.
“Q. Did you say anything about the exact seat where the man was sitting in the car when he got up to go out? A. No, I couldn’t say whether I did or not. If they asked me, I told them; I simply answered any questions. ’ ’ -
Henry Oswold, a witness for the plaintiff, testified: That on the 8th day of October, 1904, he was a policeman in the World’s Pair district. That he was out
W. A. Gar ragas, witness for the plaintiff, testified: That he lives in .Louisville, Mississippi, has lived there all his life; that the deceased was his brother-in-law; he was about forty-two years old when he died. That the deceased lived in the country all his life, and had never been to a city larger than Meridian, Mississippi. He knows that the deceased had not within the past ten or fifteen years .visited any city. That he was with him and saw him every day or two; that if he had left the country, he would have known it. That the deceased had never been to the city of St. Louis before. That he reached St. Louis, he thinks, on the 7th of. October. Witness says that he visited and inspected the place where the accident occurred; that at that place, fifty or sixty feet east of the Clayton Road, he measured the distance between the double tracks of the Market street line. That he also measured the distance that the Market street cars projected over the track, and that it was twenty-five inches. That the distance between the double tracks was fifty-six inches, thus making a space of six inches between the Market street cars in passing each other on the double tracks at the place of the accident. He says that Louisville is twenty-two miles from the railroad, and was formerly sixty miles from the railroad. That the deceased, he knows, had been sick with chills and fever a couple of weeks before he came to the World’s Fair.
James B. Gully, a witness for the plaintiff, testified: That he visited and inspected the tracks of the defendant at the place where the accident occurred. That the place was pointed out to him by a police officer who witnessed the accident, and it was about fifty
The Court: “The testimony in this case is to the effect that these cars did not touch each other in passing.”
Mr. Williams: “But suppose that they swayed so much that they came within an inch or two inches of each other?”
The Court: ‘‘That raises the question of whether a man has a right to project his body beyond the side of the car even two or three inches. ’ ’
Mr. Williams: “And I say that if an ordinarily prudent man would do that, that they were guilty of negligence in running their cars that way.”
The court sustained the objection, to which ruling the plaintiff then and there excepted at the time.
The court refused to allow any testimony that the cars would rock and sway in their motion in running at their, usual rate of speed, to which action of the court plaintiff timely excepted.
John B. Slough, witness for the plaintiff, testified: That he is the assistant claim agent of the United Railways Company; that his duties in the preparation
Mrs. Henry C. Gage, the plaintiff, testified: That she was married to the deceased on the 14th day of November, 1888. That on the 8th day of October, 1904, she was Ms lawful wife. That he came to Ms death in a street car accident while visiting the World’s Fair. That he was a stranger in St. Louis at the time he was killed, and that he was not in the habit of visiting cities where electric cars were operated. That he was a man of sober habits, never drank to excess, and never used drugs of any kind.
As stated, at the close of plaintiff’s case, the court directed a verdict for the defendants, and plaintiff took a nonsuit with leave. Then after the proper steps were taken, the ease was appealed to this court; the grounds of the appeal are set forth in the assignment of errors.
I. The first insistence of the appellant is, that the court committed reversible error in giving respondent’s instruction in the nature of a demurrer to the evidence. This instruction told the jury that there was not sufficient evidence to make out a primafacie case for the plaintiff. In order to properly determine that proposition, it will be necessary to briefly state the evidence as preserved in the record, which is as follows:
Plaintiff and deceased were husband and wife; they were country people, living in the State of Mississippi, and had never been used to city life. At the time of the accident complained- of, the deceased was in St. Louis in attendance upon the World’s Fair, then in progress. He reached there on October 7th and was killed on the 8th.
The defendant was a street railway company engaged in the carriage of passengers for hire; and at the time of the injury the deceased was a passenger on one of its west-bound cars. At the point of the
Immediately before the injury occurred, the conductor in charge of the car, John Greekie, a witness in the case, and a little boy were standing on the rear platform of the car. Just at that time the husband of plaintiff was seated near the center of the car and was taken sick at- the stomach, and in order to relieve himself he arose from his seat and passed through the ear to the rear platform, and protruded his head over the south railing, and vomited. After thus relieving himself, he straightened up for a moment, and then again protruded his head over the railing and began vomiting again, and while in that act an east-bound car on the south track in passing- the car he was on struck him on the side of the head and killed him almost instantly.
Under that state of facts, the trial court held, as a matter of law, that the deceased, was guilty of such contributory negligence that his widow could not recover..
It is the well-settled law of this State, and elsewhere, that it is not negligence, as a matter of law, for a passenger on a street car to protrude a portion of his body out of the car in which he is being carried, but such question is one of fact to be determined by the jury, under proper instructions from the court;
In the Allen case, supra, the plaintiff was a city-reared man and was familiar with the cars, tracks, etc., and was struck by a passing car on another track while he was stepping down from the platform of the grip-ear on to the running board, for the purpose of taking a seat behind the gripman’s station. In that case the distance between the cars was thirteen inches; and, under those facts, this court held that the evidence was sufficient to carry the case to- the jury.
The appellant has cited some thirty-odd cases from the various states enunciating the rule announced above, but the law upon that question is so well settled, that we believe it would be a useless waste of time to attempt to- review them.
"We have-been unable to see anything in the facts of this case which would take it out of the operation of the rule announced in the Allen case. Self-respect and- decency prompted Gage, and would prompt any ordinarily decent man, to leave the car and seek the platform in case of such sickness.
II. The plaintiff also insists that the operation of street cars with a space of only six inches between them in passing each other, with unguarded openings between them, was of itself an act of negligence, and for that reason the demurrer to the evidence should not have been sustained, but that the case should have been submitted to the jury upon the questions of defendant’s negligence and the contributory negligence of the deceased.
In the discussion of this same question in the case of Allen v. Railroad, supra, Valliant, J., said: “Defendants also think that the case should have been
The case at' bar presents a stronger case for the -consideration of the jury than any of the cases above
These are matters which should be considered by the jury. [7 Am. and Eng. Ency. Law, 391, 392; Allen v. Railroad, supra; Langan v. Railroad, 72 Mo. 392.]
III. The evidence shows that the conductor in charge of the car on which Gage was injured was on the rear platform thereof when he came out of the car, and he must have seen Gage during the moments of his distress, and must have been oblivious to danger; and knowing, as he did, the dangerous juxtaposition of the cars in passing, he was guilty of negligence in not warning him of the approaching and impending danger in time to have averted the injury.
In the consideration of a similar question, this court, speaking through Wagner, J., said: “He [the passenger] stood within a few feet of the driver, and the driver knew, or, at least, it was his duty to know, the close proximity of the cars when they were about to collide, and also the position of the passengers on the platform. His driving steadily ahead, under such circumstances, stamps the act with recklessness and gross negligence. The question of negligence was for the jury, and was properly submitted to them.” [Huelsenkamp v. Railroad, 37 Mo. 537, l. c. 553.]
And, as was said by the Court of Appeals of Kentucky, in the case of Railroad v. McCleave, 18 Ky. Law Rep. l. c. 1037: “But the court refused to so instruct, and we think did not err in that particular, for no degree of contributory negligence on the part of 'even a trespasser will release a person in charge of a train or single car, whether operated by steam or 'electricity, from the legal obligation to use reasonable «effort to avoid injuring him if his peril is discovered
The Court of Appeals of the District of Columbia held that it was gross negligence for a street railway company to use cars for the transportation of passengers which in passing each other are not more than three inches apart, and that it was doubly negligent for running them with the panels taken off and with the runningrail placed where the passengers would naturally rest their arms. [Railroad v. Smith, 25 App. Cas. (D. C.) 259.]
IV. Plaintiff complains of the action of the court in refusing to permit her to prove that street cars while in motion will rock and sway from side to side, on account of the inequalities of the track.
"We are of the opinion that said ruling was not error, for the reason that it is common knowledge that a car being propelled by steam or electricity over a railroad track will he swayed by inequalities of the track. [Geitz v. Railroad, 72 Wis. 307; Railroad v. Smith, supra, l. c. 271.]
The juror’s knowledge of those facts is equal to that of any witness who might testify upon the subject. The swaying of the car is caused by the operation of the law of-gravity and the mechanical forces used in propelling the car. When a wheel of the car comes to a low place on the rail, the law of gravity carries it to the lowest point, and the mechanical forces operating upon the car, in turn, raises it to the highest point
It is proper, however, to show whether or not the surface of the rails and tracks at the point of the injury were even or uneven at the time of the accident.
Y. Gage had the right to presume that when he went to the rear end of the car to relieve himself, the tracks and cars were properly constructed, and that there were no hidden dangers connected with their operation. [Sweeney v. Railroad, 150 Mo. 385; Riska v. Railroad, 180 Mo. 168; Weller v. Railroad, 164 Mo. 180; Hutchinson v. Railroad, 161 Mo. 246; Lynch v. Railroad, 112 Mo. 420.]
YI. We are of the opinion that the action of the court in striking out parts of plaintiff’s petition was -erroneous, for the reason that it is a question of fact for the jury to determine, whether or not it was negligence on the part of the defendant to so operate its cars as to leave only a space of six inches between them while passing, without guards to protect the passengers from injury caused by coming in contact with passing cars.
YH. The defendant insists that the abstract of record does not properly show that the bill of exceptions was timely filed in the court below.
After a careful reading of the abstract, in the light -of the adjudications of this court upon that subject, we are inclined to hold that the abstract is not open
For the reasons hereinbefore stated, we are. of the opinion that the judgment should be reversed, and the cause remanded for a new trial. It is so ordered.