Schmitt v. St. Louis Transit Co., 115 Mo. App. 445

Schmitt v. St. Louis Transit Co.

115 Mo. App. 445 | Mo. Ct. App. | 1905

GOODE, J.,

(after stating the facts). — Action for personal injuries alleged to have been received by plaintiff by the premature starting of one of defendant’s trolley cars while plaintiff was in the act of boarding it. The accident occurred June 3, 1901, at the intersection of Delmar and Bayard avenues in the city of St. Louis. Delmar avenue runs east and west and Bayard avenue north and south, the latter running to the former, but not across it. That is to say, Bayard avenue starts at the north line of Delmar and runs thence northward. Passengers are received at the intersection of those streets. The stopping place for taking them on board east-bound cars is at a point on the south side of Delmar where the east line of Bayard would strike were that street prolonged southward beyond Delmar.

The essential disputes of fact in the case relate to whether plaintiff stood at what would be the southeast corner of the two avenues did Bayard cross Delmar, or at the southwest corner, and whether he attempted to board the car while it was in motion or at rest. His testimony, and he was corroborated by a man who said he was an eyewitness, is that he took his stand at what would be the southeast corner of the two avenues if Bayard crossed Delmar; that is, at the usual place to take passage on east-bound cars. The testimony of the defendant’s witnesses, namely; the conductor, the motorman and a passenger, is that plaintiff stood at what would be the southwest corner and that the car yyus in m0_ *452tion when he tried to board it. The occurrence was early in the morning. The car had stopped at Euclid avenue, a block or two west of Bayard and had there taken on a lamplighter whose habit it was to board the car every morning. At Euclid avenue the car moved eastwardly toward Bayard where the plaintiff was waiting. He said he raised his hand as a signal for the motorman to stop and the car stopped still on the east line of Bayard; that he attempted to step on it and just as he did so, holding to a handbar, the car commenced to go at rapid speed and he was thrown down and whirled around on the ground. Plaintiff swore he was thrown about ten feet. The only eyewitness who testified to the main facts for the plaintiff, swore that he (the witness) took the car at Walton avenue, which is intermediate between Bayard .and Euclid and west of the former. He corroborated Schmitt as to the car being motionless when Schmitt tried to board it and starting while he was in the act ofi doing so. Tbe conductor of the car swore that when it reached Bayard avenue it was going about twelve miles an hour and he saw the plaintiff, who had been standing at what would be the southwest corner of the two avenues if they crossed, run after the car as it passed toward the west line of Bayard and try to catch hold of it; that he (the conductor) kept telling plaintiff to wait until the car stopped, but plaintiff grabbed hold before it could be stopped and was dragged until he fell. The motorman and a passenger gave substantially the same testimony.

Plaintiff was an elderly man and the injury he received was very severe; a permanent hernia which never can be relieved except by a dangerous surgical operation. The existence of the hernia was proved by reputable physicians and we have no doubt the plaintiff is suffer-' ing from it. He swore he never had anything of the kind before and that it was caused by the injury; nor was there any evidence to the contrary.

An earnest appeal is made to us to reverse the judg*453ment because the weight of the evidence so manifestly preponderated in favor of the defendant that the verdict of the jury must have been the result of prejudice. Every member of the court has studied the evidence with great care and having done so, we are unanimously of the opinion that we cannot interfere with the verdict without usurping authority. The instructions to the jury will accompany this opinion, and it will be seen that they submitted the issues with a fairness which left the defendant no cause for complaint. One of them advised the jury that plaintiff cpuld not recover if he attempted to board the car while moving. There might have been some trouble in sustaining an instruction of that kind if the verdict had been against the plaintiff; for as a general rule it is not the law that an attempt to board a car in motion necessarily bars recovery for an injury caused by acceleration of speed while the party was in the act of boarding it. Whether getting on a moving car is a negligent act, depends on circumstances such as the speed the car is under when the attempt is made, the age and strength of the party, whether he is incumbered by burdens or not; and any other relevant fact. [Hansberger v. Railroad, 82 Mo. App. 566, 579, and citations.] If the car is moving very slowly, it is a question for the jury whether the act was negligent. We do not undertake to pass on the propriety of the instruction in this case, as it is unnecessary to do so. The trial court probably took into consideration the age of plaintiff and the lack of evidence to show that if the car was moving when he started to get on, its movement was increased by a careless act of the motorman. Our purpose is to show that the instructions were as favorable to the defendant as it had a right to expect. The court gave an admirable admonitory charge to the jurors about the spirit in which their duties should be performed, and warning them to permit no sympathy or prejudice to influence their verdict. The trial judge did not see fit to interfere with the verdict, though in the motion for a new trial *454defendant made the point that it was against the physical facts and indicated passion and prejudice on the part of the jury. Five persons witnessed the occurrence, two of whom testified to facts favorable to the plaintiff and three to facts favorable to the defendant. The jury and the court observed the demeanor of those witnesses on the stand, and as has been observed in innumerable cases, were better able to weigh their testimony than an appellate tribunal with no light on the matter except such as can be gained from a study of the record.

It is argued that the physical facts show the accident could not have happened in the manner plaintiff testified. The supposed physical facts are that plaintiff said he was thrown ten feet by the movement of the car and whirled around. The argument is that if the car had been motionless when he attempted to get on it, it could not at once have moved forward with velocity enough to throw him that distance and, therefore, it must have been in motion when he caught hold of it. It looks improbable that a car could start from a motionless state with such violence as to throw a person in the act of stepping on it, ten feet away. But we do not understand that the plaintiff meant to say he was thrown exactly ten feet, or that by being thrown he meant hurled through the air. The conductor swore plaintiff was dragged along some distance and finally thrown on the ground. Plaintiff’s statement about how far he was thrown is not of the essence of the case, nor is it supported by the testimony of all the witnesses. The jury were not bound to believe his statement as to that matter, nor can this court assume that it was absolutely true because he swore to it. The testimony of the other witnesses went to show he was not thrown that distance; therefore there was no unity of testimony as to one of the physical facts 'said to control the case. The jury may have disbelieved his statement about how far he was thrown and have believed his statement that the car was still when he attempted to get on it and hurt him by starting prema*455turely. If there had been a concert of testimony that he was thrown through the air a distance of ten feet, we would lend a more attentive ear to the contention that such an accident was impossible if the car was motionless when he caught hold of it.

Complaint is made of the court’s refusal to give an instruction that if the jury found the physical facts conflicted with the oral testimony, the finding should be in accordance with the former. In so far as that charge was proper, we think it was embraced in the given instructions. As said above, there was no agreement among the witnesses about what the physical facts were. In a sense, nearly or quite all the facts testified about were physical; as they related to where the car was; whether it was at rest or in motion when plaintiff tried to get on; whether it started as he was getting on and the effect on him of the motion it was under already, or the motion suddenly imparted to it. If the testimony showed beyond dispute any fact which rendered it impossible according to the laws of nature, for the accident to have occurred from defendant’s negligence, or unless plaintiff was himself to blame, we would reverse the judgment. But where nothing of that kind is conclusively shown in an action for a personal injury, an instruction like the one requested by defendant is covered by general instructions requiring the jury to determine the issues of defendant’s negligence and plaintiff’s contributory negligence, and to weigh the testimony of the different witnesses according to its probability and reasonableness, or the contrary. To do this jurors would have to compare the statements of any witness with what they believe from the entire evidence the so-called physical facts were. If the jurors thought any statement was irreconcilable with those facts, presumably such statement would be rejected. The expression “physical facts” must be taken to mean in this connection, the location and movements of the plaintiff and the car from the inception to the close of the occurrence, and the effect of *456the car’s movement or the plaintiff:. The judgment is affirmed.

All concur.