120 Mo. App. 328 | Mo. Ct. App. | 1906
After stating preliminary matters and that plaintiff boarded one of defendant’s Market street cars, in the city of St. Louis, and paid his fare, the petition alleged:
' “That after taking said seat and paying his fare, plaintiff rested his elbow upon the window sill of said window of the car, and that as said car approached a point between Compton and Theresa avenues on Man-chaster avenue, along the route of said Market street line, his elbow was projecting about two inches on the outside of said car, at which point his elbow was struck by an eastbound Market street line car of defendant, then being operated on a parallel track, causing his arm to be broken at a point near the elbow.
“That the injuries thus sustained by the plaintiff were directly caused by the carelessness and negligence of the defendant in running and operating its said westbound car and said eastbound car on said line at said point, in such close proximity to each other while passing as to cause the sides of said westbound car and said eastbound car to touch and rub against each other, and thereby imperiling and endangering the safety of passengers on its said cars, and more especially of the plaintiff on the said car upon which he was riding.”
Then follow allegations of special damages and prayer for judgment.
The answer was a general denial and a plea of contributory negligence, which plea was put at issue by a reply.
At the close of plaintiff’s case, the court gave an instruction in the nature of a demurrer to the evidence, whereupon plaintiff took a nonsuit with leave to move
Plaintiff’s evidence shows that on July 25, 1904, between the hours of eight and nine o’clock p. m., he took passage at the corner of Market and Eighteenth streets on one of defendant’s Market street cars, traveling west, seated himself on the first cross seat on the left side, in the front end of the car, and by an open window, and paid his fare. His destination was the grounds of the Louisiana Purchase Exposition Company, where, he was employed as a Jefferson Guard. Plaintiff rested his left arm in an upright position on the window sill, his elbow slightly projecting over the window sill but within the outside edge of the body of the car and two inches inside the guards extending across the window. The Market street line to the Fair Grounds ran over a portion of Manchester avenue (a street running east and west) and where it is crossed by Compton and Theresa avenues, running north and south, double tracks are maintained in Manchester avenue, which plaintiff’s evidence shows are only fifty-four inches apart between Compton and Theresa avenues, and that the cars project twenty-five inches beyond the track rail, so that cars passing on the parallel tracks are only four inches apart, and hence are liable to rub or bump against each other when either or both sway or rock back and forth while passing. The evidence shows that on the evening in question the car plaintiff was on was running at a rapid speed between Compton and Theresa avenues, swaying and rocking, and while so running and swaying it passed a car traveling east on the parallel track, and the two cars came together with a crash, causing a “rubbing or rumbling noise;” that as they passed, plaintiff felt a shock in his left elbow and afterwards discovered that the end of the nina was fractured. Neither car was stopped or damaged by the rubbing or bumping together, nor were the guards across the win
In Dougherty v. Railroad, 81 Mo. l. c. 329, the general rule in respect to the happening of accidents to passengers in vehicles, is thus stated: “That where the vehicle or conveyance is shown to be under the control, or management of the carrier or his servants, ‘and the accident is such as, under an ordinary course of things, does not happen, if those who have the management use
In Allen v. Transit Co., 183 Mo. 411, on this question, the Supreme Court said:
“Unless the evidence of contributory negligence is so clear that there is no reasonable ground for two opinions about it, the court cannot pronounce the injured party’s acts contributory negligence as a matter of law, but should submit the case to the jury to decide the point as a matter of fact.”
It his been held in some of the States, that it is negligence for a. passenger to expose his person from the window of a car on a steam railroad, notably in New York, Pennsylvania, Indiana, Kentucky, Maryland and West Virginia. The appellate courts of some of the other states including onr own, have been more conservative and held that it is a question for the jury. [Barton v. Railroad, 52 Mo. 253; Quinn v. Railway, 29 S. C. 381; Moakler v. Railway, 18 Oregon 189.] But we have found no case where it has been held that it is negligence per se for a passenger on a street car to expose his elbow, to
Nellis says: “So a passenger sitting beside an open window, riding with his arm resting on the sill not more than three inches outside the car, is not necessarily negligent so as to preclude recovery for an injury to his arm caused by another car passing on a switch. But under certain conditions of speed and surroundings it may be negligent, as a matter of law, for a passenger to permit his arm, or any portion of his body, to protrude beyond the outside line of the car, and the same rule be applicable as in the case of passengers on steam roads.” [Nellis on Street Railroad Accident Law, p. 192.]
The evidence in this case does not show such condition of speed and surroundings as to warrant the court to say as a matter of law, the defendant was guilty of contributory negligence. The question, whether or not defendant was guilty of contributory negligence was for the jury to determine, under all the facts and circumstances in evidence. Our conclusion is that the court erred in taking the case from the jury.
The judgment is therefore reversed and the cause remanded.