Senf v. St. Louis & Suburban Railway Co.

112 Mo. App. 74 | Mo. Ct. App. | 1905

BLAND, P. J.

(after stating the facts). — 1. The gravamen of the charge in the petition is the stopping of the car at an unsafe place for the plaintiff to alight. The description of the ground with respect to the car, as set forth in the petition, is not shown by the evidence. In the petition the ground is stated to have been lower than the car, and so much lower as to make it unsafe to step from the car to the ground. The plaintiff testified that the ground was a foot higher than the floor of the platform of the car. The general description of the ground, as alleged in the petition, is that it was “disturbed, uneven and insecure.” For the reason the situs of the place where plaintiff got off the car was shown by her evidence to be the reverse of that alleged in the petition, defendant claims there was a fatal variance between the allegations of the petition and plaintiff’s proof, and moved to exclude her evidence. The court overruled the motion without requiring the petition to be amended to conform to the proof. This ruling is assigned as error. The assignment must be ruled against the defendant, for the reason we do not deem the variance a material one, and for the further reason defendant did not comply with section 655 (R. S. 1899) of the Code, by alleging that it was misled by the variance and proving the same by affidavit to the satisfaction of the trial court.

2. The court refused to permit the defendant to show by competent evidence that (occupying a part of the public street by its tracks) it was engaged in sinking its tracks where plaintiff got off, in obedience to an order given it by the proper city authorities. We think this was error. The defendant did not own or control the street nor establish its grade. Its occupancy of the street was permissive only and subject to the supervision of the city, and it was bound to lower or raise its tracks to conform to the grade of the street whenever required,to do so by the city and, -if it was engaged in sinking its tracks to conform to a certain grade, by order of the city, it was not making the alteration of its own volition and was not responsible for the condition of the street, caused by the sinking of its tracks, and cannot be held liable merely because the track was being lowered or the ground about the track was disturbed, uneven and insecure, if it exercised reasonable caution and skill in making the alteration. This error would be reversible but for the fact that the court, in its instructions to the jury, confined it to a consideration of the duty defendant owed the plaintiff to stop its car at a reasonably safe place to enable her to get off.

3. It is insisted by defendant that plaintiff should have been nonsuited on her own evidence. Plaintiff’s evidence shows that she was not ignorant of the condition of the ground where she alighted, that she had seen and observed its condition in the morning of the day she was hurt, when she took a car at Kingshighway to go down town, and knew that defendant was engaged in sinking its tracks at Kingshighway and for some distance each way from it, and she testified that Kingshighway was her street to get on and off defendant’s cars and as the car from which she alighted approached Kings-highway, she signalled the conductor to stop the car and let her off at that street. Contributory negligence is pleaded in the answer as a defense, and the question is, was plaintiff guilty of such contributory negligence as to preclude her right to recover, knowing, as she did, the condition of the ground on which she must alight? ■

In Warren v. Fitchburg Railroad, 8 Allen 227, cited and approved in Creamer v. West End Railway, 156 Mass. 320, it was said: “If the whole evidence introduced by the plaintiff has no tendency to show care on his part, but on the contrary shows that he was careless, it is the duty of the court to direct the jury, as matter of law, to return a verdict for the defendant.” This is but saying, if plaintiff’s whole evidence shows he was guilty of negligence which directly contributed to his injury, he cannot recover. This is a settled law in this jurisdiction. Hogan v. Railway, 150 Mo. 36, 51 S. W. 473; Holwerson v. Railway, 157 Mo. 216, 57 S. W. 770; Davies v. Railway, 159 Mo. 1, 59 S. W. 982. And if the plaintiff’s evidence showed that in leaving the car, she acted on her own judgment and was uninfluenced by the action and advice of the conductor, we would be inclined to hold that her evidence conclusively shows that she was careless and could not recover. But her testimony shows that after seeing two men get off the car and slip and fall, she said to the conductor: “You cannot expect me to get off here,” that the conductor then, took hold of her arm, stepped down to the. second step, and said, “Jump this way madam,” that she jumped and fell,, and slipped on the incline. Now, while plaintiff’s evidence shows she was not ignorant of her environment or of the general condition, of the ground, we think it tends to show she relied upon the, supposed, superior knowledge of the conductor as to the condition of the ground and its safety as an alighting place. She had the right to assume from the language and conduct of the conductor that the place was a reasonably safe one for her to alight, and it is fair to presume she acted on this assumption. Mason v. Railway, 75 Mr. App. l. c. 10. While it is not the duty of conductors to assist passengers on and off cars, generally, yet it is their duty to do so in exceptional cases, and we think, considering the night, the condition of the street, and plaintiff’s expressed fear of alighting, her case comes within the exception. At any rate, the conductor undertook to advise and help plaintiff off and in doing so acted for the company and it is bound by his acts, and if he was negligent in the circumstances, in selecting the place for plaintiff to alight and in assisting and advising her where to alight, his negligence is the negligence of the company for which it is liable.

4. The plaintiff’s instruction (No. 1) follows the language of the petition in respect to the condition of the ground and its elevation with respect to the car; it should have followed the evidence. However, we do not think the variance is material, that the jury was misled thereby or that the error was prejudicial to defendant as the instruction as a whole correctly declared the law of the case.

5. The defendant assigns as error the refusal of the court to give its instruction No. 2, supra. The contention is that the moment plaintiff left the car, she ceased to be a passenger and the defendant owed her no further duty. Plaintiff testified that she jumped from the platform, fell and then slipped, not that she alighted on the street and, after safely alighting, slipped and fell. In view of this testimony, the contention amounts to this: that plaintiff ceased to be a passenger when she jumped from the platform and was in the air. While the street is no sense a passenger station for which street railroad companies are responsible (Booth on Street Railroads, sec. 326; Bigelow v. West End Street Railway, 161 Mass. 393; Conway v. Horse Railroad Co., 90 Me. 199), yet they are hound to avoid stopping their cars for the purpose of discharging passengers at street crossings, where the condition of the street is such as to make it dangerous for a passenger to undertake to get off, for the relation of carrier and passenger does not' end until the passenger is off the car and on the street in safety. O’Brien v. St. Louis Transit Co., 84 S. W. (Mo.) 939; Fillingham v. St. Louis Transit Co., 102 Mo. App. 573, 77 S. W. 314; Lehner v. Railway, 85 S. W. 110; Richmond Street Railroad Co. v. Scott, 86 Va. 902.

We do not think the evidence warranted the giving of either Nos. 2 or 4 of defendant’s refused instructions. This disposes of all the errors assigned in defendant’s brief. Discovering no reversible error in the record, the judgment is affirmed.

All concur.