Shareman v. St. Louis Transit Co.

103 Mo. App. 515 | Mo. Ct. App. | 1903

GOODE, J.

(after stating the facts-as above). — 1. An objection was made to the introduction of any evidence on the ground that th¿ petition did not state facts sufficient to constitute a cause of action. The argument advanced by appellant’s counsel in support of the objection is that, as the petition alleged the motion of the car was imperceptible when Mrs. Shareman started to get off, and alleged that she was thrown or fell from the car on account of its imperceptible motion, the conductor, if the motion was imperceptible, could not be aware of it and, therefore, was not negligent. When this objection was preferred plaintiff’s counsel asked leave to amend so that the averment would read “imperceptible to her;” that is, to plaintiff’s wife; and the amendment was allowed over the defendant’s objection. As will be seen from the statement of the case given above, this averment of the imperceptible motion of the car was abandoned by plaintiff’s counsel during the trial. In his opening statement to the jury, said counsel informed them that the evidence would prove the car stopped and that while Mrs. Shareman was on its steps and in the act of stepping off, it started and threw her. This theory was adopted in the instructions submitted, and at plaintiff’s request one instruction was given which told the jury there was no evidence in the case that when plaintiff’s wife was proceeding to alight from the car it was moving, but so slowly that its motion was imperceptible to her. The court properly permitted the amendment; which, however; from the course the evidence took, proved to be immaterial. There were certainly sufficient facts stated in the petition to let in evidence. There was an averment that the car stopped, or slowed down until its motion was imperceptible to Mrs. Shareman, and when she was in the act of stepping off, its motion threw her and hurt her. Of course, if the car stopped still, as the petition alleged, it must have started again while she was alighting, for its motion to throw her down; and, as stated, the case was tried for the plaintiff on that theory alone. The averment was good enough to permit the introduction of evidence to prove the car stopped and then suddenly started. We think, therefore, the petition stated a cause of action, without reference to specifications of negligence based on the city ordinance which forbids conductors to allow women and children to get on or off cars while they are in motion. But such a pleading is to be condemned; and this one would be if it had been attacked by motion for a more definite and specific averment in regard to the.movement of the car and the cause of the fall. The averment as it stands leaves one in doubt whether the pleader intended to- count on a fall due to the starting; of the car from a motionless state while plaintiff’s wife was alighting, or one due to the car crew simply reducing speed for her to alight instead of stopping. Defendants in these tort cases are entitled to be clearly apprised by the petition of the negligent acts relied on as. a cause of action. Wills v. Railroad, 44 Mo. App. 51; Waldhier v. Railroad, 71 Mo. 519; Current v. Railroad, 86 Id. 62. But this defendant took no step to have the petition made definite.

2. It is contended there was a variance between the petition and the proof in that the petition counts on an accident arising from the plaintiff’s wife leaving the car while it was in motion and before it stopped; whereas the proof showed it had stopped and started again as she was stepping off, but before she reached the street. What is said above answers this argument ;• for the petition pleaded the matter in two ways, though the case was tried exclusively on the assumption that; the car had come to a full stop and threw Mrs. Share-man down by starting suddenly as she was getting off. No affidavit of surprise was filed in order to take advantage of the supposed variance and certainly, in view of the statement of the petition that the car had stopped, and the testimony tending to prove that statement, it can not be held there was a total failure of proof. The flaw we find is not a variance between the pleading and the proof, but an indefinite petition.

3. In our opinion this cause was submitted to the jury on mistaken and inconsistent theories of the law. The second instruction given for the plaintiff laid down the proposition that under the ordinance read in evidence it was the conductor’s duty to exercise ordinary care to prevent the car from being in motion while the plaintiff’s wife was alighting, and the same degree of care not to permit her to alight while it was in motion; whereas the first instruction given for plaintiff and the appendix attached to one asked by the defendant, required the conductor to exercise high care to prevent her from leaving the car while it was moving and, in ■effect, charged that unless he did, plaintiff ought to have .a verdict. Those two instructions are in conflict as to the care required of the conductor. There is no proof that Mrs. Shareman started to leave the car while it was in slow motion and was thrown off by an acceleration of its speed. The evidence countenances only two theories of the casualty. One arises on the testimony of the plaintiff and is that after the car had stopped and while Mrs. Shareman was in the act of getting off, it was suddenly and carelessly started, she being thereby thrown on the street and hurt. That makes a clear case of liability against the defendant, if she herself was exercising due care; and there was nothing in the testimony of the witnesses to attach fault to her if those were the facts. It was the duty of the carmen not only to stop the ear, but to hold it quiet long enough for her to alight safely by using ordinary activity and caution. Strauss v. Railroad, 75 Mo. 185; Hurt v. Railroad, 94 Id. 255.

The other theory of the case arises on the testimony ■' >r the defendant. It is that after the car had stopped a sufficient interval for all passengers to alight who desired to do so, and had then started again,plaintiff’s wife suddenly arose from her seat, walked to the middle door of the car, and without ringing for a stop, stepped off and was thrown down; but not by a sudden increase of speed. If she did that, she and nobody else was to blame for the accident. For aught, the evidence shows to the contrary, she was a woman of full physical and mental capacity and, therefore, of full legal responsibility. If the defendant’s servants owed her high care to prevent injury to her, she owed herself ordinary care to avoid injury. .If she deliberately left the car while it was moving fast enough to make the act dangerous, her conduct was negligent and bars recovery. In that event the case differs essentially from one where a passenger is hurried in his exit by the failure of a car either to stop, or stop long enough, at his destination for him to get off safely by reasonable diligence. He is then, in a manner, forced to take a risk and, if hurt, will not be denied redress unless the risk taken is' one which a man of common prudence would shun. Kelly v. Railroad, 70 Mo. 602.

This car had already made a customary and reasonable pause to discharge passengers and had started onward, if the testimony for the defendant is true; as, for the purpose of this hypothesis we assume it to be. There was, therefore, no invitation, express or implied, to Mrs. Shareman to alight, nor any constraint on her to do so. If she attempted to alight while the car was moving away from its usual stopping place, the act was purely voluntary and she must abide the consequences.

In Neville v. Railroad, 158 Mo. 293, it was said that if the plaintiff’s-son was killed while getting off a moving train, without direction or invitation of the defendant railway company, or its servants, plaintiff had no case, as the deceased took the risk incident to such an act.

In Mason v. Railway, 75 Mo. App. 1, which was an •action for damages based on the ground that a railway train was not held long enough at a station to permit the plaintiff to alight safely, the plaintiff testified that he stepped on the station platform while the train was moving. Concerning this testimony, it was said that if he selected- the time when and the place where to alight, he would be held to a greater degree of care and to have assumed more of the responsibility of the situation than if the conductor was present and gave him a direction to alight; that having selected his own time, the law will hold him to the exercise of due care in making the choice in view of the environment and other circumstances which induced him to jump from the moving train.

In Jackson v. Railroad, 118 Mo. 199, plaintiff, a woman, had been injured in leaving a street car and sued for damages. Her testimony, like that for the present plaintiff, was that while she was stepping from a still car it was started and threw her off. The testi-. mony for the company was that she stepped from the ear while it was moving and after it had left its stopping-place. This instruction was given in behalf of the defendant :

“If the plaintiff undertook to alight from the defendant’s car while it was moving, then defendant could not have been guilty of any negligence charged and your verdict must be for the defendant.”

The negligence charged in the petition was that the car started while she was in the act of getting off. Said instruction was attacked as erroneous, but was approved by the Supreme Court. That case throws much light on the true issues of the present case and should be carefully studied. The instructions given by the trial court were held to embody the only theories which properly arose on the evidence therein, namely; whether the car stopped and was suddenly started while Mrs. Jackson was alighting, or whether she attempted to alight while it was in motion. It will be seen by reading the opinion that the Supreme Court insisted on holding the plaintiff fully accountable for her voluntary acts,instead of attaching blame to the conductor if he failed to intercept her though he could have done so; which the instructions submitted by the plaintiff insisted was so far his duty, that the railway company was liable if he neglected to intercept her. Defendant’s counsel in the present case contended for doctrines approved in the Jackson case, and submitted instructions which enunciated them; but the trial court refused those instructions.

It is not necessarily a negligent act to leave a moving ear; but a qestion of fact arises for the jury as to whether the act was negligent; and if it was and proximately contributed to an injury received by the passenger, he has no case for damages.

The facts shown by the record did not call for an application of the last chance rule; but the court applied it by the clause attached to an instruction requested by the defendant. Said instruction,, as requested, was that if the ear stopped to let off passengers and started forward, and after it had started and was moving away, plaintiff’s wife.attempted to alight and was thrown down and injured, he could not recover. That charge was precisely, like one approved in the Jackson case, supra. The qualification added by the (court, was in effect, that plaintiff could not recover unless the jury found from the evidence the conductor, by the exercise of a high degree of care, could have prevented plaintiff’s wife from leaving the car. The last chance rule, so far as we know, has never been held to make a defendant liable unless he could have avoided injuring a negligent plaintiff after he knew, or might have known, the plaintiff was in danger from what he (the defendant) was doing — has never been applied to make a passive defendant liable because he could have prevented a plaintiff, of' full capacity, from injuring himself. But this was what the instructions in this case did. Granting that the conductor could have hindered her from getting off (and the evidence to maintain that premise is weak) she herself, by the hypothesis of the requested instruction and by the testimony for the defendant,- was- a voluntary and active agent in bringing on the accident until the very instant of her fall. She stepped from the moving car with her eyes open, with every means to know the risk she took, with nothing done by the defendant’s servants to distract her attention or mislead her, and with no sudden peril to confuse her. Therefore her own conduct was the proximate and sole cause of the harmful consequencé. This case is, as to the point in hand, identical with Weber v. Railroad, 100 Mo. 194, in which the law was declared as we have stated it. Carroll v. Transit Co., 107 Mo. 653 is also apposite, as are secs. 185, 186 and citations in 1 Thompson, Negligence. A person who is as conscious of the danger to which he is exposed as is another person, is at least as much bound to tryvto shun danger, instead of going forward to meet it, as the other party is to try to avert it; otherwise defendants only are liable for negligent acts. Moore v. Railroad, 75 S. W. 672; Cooley, Torts (2 Ed.), 812.

Whatever force may be allowed to the city ordinance in question, it can not abrogate the rule of law that when the negligence of a party proximately and directly causes or contributes toward causing injury to him, he has no just claim for damages from another individual whose negligence also played some part in the affair. Moore v. Railroad, 75 S. W. (Mo.) 672; Hudson v. Railroad, 101 Mo. 13; Cocoran v. Railroad, 105. Id. 399; Weller v. Railroad, 120 Mo. 635; Duncan v. Railroad, 46 Mo. App. 198. The scope of the last chance doctrine is to be found'in the adjudicated precedents, which have already encroached on the doctrine of contributory negligence to the extent of constituting an exception to that doctrine as applied in some cases.

The judgment is reversed and -the cause remanded.

Bland, P. J., and Rey burn, J., concur.