Spencer v. St. Louis Transit Co.

111 Mo. App. 653 | Mo. Ct. App. | 1905

BLAND, P. J.

(after stating the.facts). — 1. Defendant strenuously insists that plaintiff’s own evidence shows that he was guilty of contributory negligence, as a matter of law, in attempting to board a rapidly moving car. Plaintiff’s evidence tends to show that the car was running about as fast ás a man could ordinarily walk. The evidence of some of plaintiff’s witnesses put the speed at what would be a fast walk. One on boarding a car for the purpose of becoming a passenger thereon is bound to exercise ordinary care, and if, as was held in Weber v. Railway, 100 Mo. 194, 12 S. W. 804, 13 S. W. 587, the rate of speed was so high and the place where plaintiff attempted to get on or off was so obviously perilous that a person of ordinary prudence would not attempt it, and yet plaintiff made the attempt and was injured, he should be nonsuited. But as was held in Eikenberry v. Transit Co., 103 Mo. App. 1. c. 452, 80 S. W. 360, every risk one voluntarily assumes is not negligence per se. It is not so unless the peril is so obviously dangerous that no prudent man would assume it. In jurisdictions where it has not been held negligence, as a matter of law, for one to attempt to get on or off a slowly moving train or cars, the courts have held that • one who attempts to get on a train or car, moving at a speed of not more than three or four miles per hour, was not guilty of contributory negligence, as a matter of law. Eikenberry v. Transit Co., supra, 1. c. 452, and cases cited. Plaintiff was a young man, presumably possessed of the ordinary freedom of action and agility possessed by men of his age, and we will not venture to say, as a matter of law, that he was guilty of contributory negligence in attempting to board the car, if it was moving at the speed the evidence in his behalf tends to show it was travelling.

As supporting its demurrer to the evidence, defendant further contends that there is no evidence that any signal was given to the motorman, by the plaintiff or any one of the crowd, that plaintiff or any of them wanted to take passage on the car, and for this reason the relation of passenger and carrier was not established. The evidence shows that the platform on which plaintiff and others were lined up was constructed by defendant for the convenience of its passengers in getting on and off its cars, and that plaintiff and others were on the platform early in the morning in the attitude of waiting for a car to take them down town to their several places of busines and employment. These circumstances were notice to the motorman of the desire of the crowd to board the car, and his evidence, that he waived his hand and hallooed to them to take the next car, shoAVS conclusively that he knew they were on the platform for the purpose of taking a down town car, therefore, if the motorman, as plaintiff’s evidence tends to show, turned off the power and applied the brake and checked the speed of the car for the apparent purpose of taking on passengers, and plaintiff was induced thereby to believe he was going to stop the car for that purpose, then plaintiff had a right to assume that he and the crowd were invited to board tbe car, and if, when he attempted to board it, its speed was not so great as to make the effort obviously perilous, he wag entitled to have his case submitted to the jury, and there was no error in refusing defendant’s demurrer to the evidence.

2. Compliant is made of the first instruction given for plaintiff. It reads as follows:

“The court instructs the jury, that if you believe from the evidence that, on February the fifteenth, 1902, between seven and eight a.m., plaintiff was standing at or near the southeast corner of Delmar and DeBaliviere avenues in St. Louis, and that said place where plaintiff stood was the usual place where defendant received passengers on board its street cars, bound eastward on defendant’s Olive street line and that defendant was then a common carrier of passengers from that place eastward over said line,-and that plaintiff had previously paid a fare of five cents to an agent of defenant for carriage by defendant over said line eastward from said place, and that plaintiff was in view of the motorman (in charge of one of defendant’s cars of said line) as it approached from the west the said place where plaintiff was; and that thereupon said motorman put on his brake and caused said car to check its speed and to approach and reach said place at the rate of speed so slow to permit a man of ordinary prudence and caution to board said car in safety; and if you further find from the evidence that from the movement of the said car, and from the action of said motorman, plaintiff had good reason to believe and did believe that he was then and there invited to step aboard of said car as it reached the place where hé was standing; and if you also believe from the evidence that when said car, Avhile moving as aforesaid, reached the said place where plaintiff stood, he mounted the step leading to the rear platform of said car, and that immediately thereafter said motorman in charge of said car caused it to suddenly move forward with a sharp jerk, so that plaintiff was thrown thereby from said car and consequently sustained injuries; and if yon further find from the evidence that, in causing said sudden movement of said car, said motorman failed to exercise that degree of care in the operation of said car as is defined in another instruction to be the care required of a common carrier of passengers, and that plaintiff, in getting on said car and in his other conduct in the circumstances aforesaid, exercised ordinary care such as a person of reasonable caution would have taken to avoid danger and injury, in the same situation and circumstances, as those of the plaintiff at that time, then your verdict should be for the plaintiff.”

The instruction is criticised for mentioning the transfer ticket plaintiff had in his possession. Reference to the ticket might'very well have been left out of the instruction as it had no- bearing whatever on the merits of the case; it was some evidence of plaintiff’s purpose to take an Olive street car to be carried down town, nothing more. But the mentioning of the ticket is a mere recital of an uncontroverted fact in evidence. The instruction does not attempt to give it any force or effect upon the merits of the controversy, therefore, ‘ its presence in the instruction could not possibly have done the defendant any harm. We think, as a whole, the instruction properly declares the law of the plaintiff’s case.

The second instruction given for plaintiff is as follows :

“The amount or degree of care required by the law of a common carrier of passengers and of the said motorman in the operation of said car, as mentioned in the first instruction of the court, was the highest practicable care u;hich a capable and faithful railroad man would exercise in the same situation and circumstances as those in which said motorman was then placed; and the omission of such care would be negligence on the part of said motorman and of said defendant.”

Plaintiff’s evidence shows that he was on the step of the car, holding on to the handrail, from which position he was thrown by a sndden forward lurch of the car; and we think plaintiff’s evidence tends to show that the conduct of the motorman was such as to invite plaintiff to board the car or, at least, to lead him to believe that he was invited to board it. In either case, the defendant owed him the highest degree of care mentioned in the instruction. The contention that plaintiff’s evidence does not tend to establish the relation of carrier and passenger- is not supported by sound reasoning. Contracts of carriage, as between a street railway and its passengere, are made every minute in the day by siginal and by movements of its servants in the management of its cars, and such contracts are as complete, as well understood, and as binding as if reduced to writing and signed by the parties. Where a signal is given by one wishing to board a street car, or where his attitude is such as to indicate such wish, and either is seen and recognized by the motorman and, in apparant response, he turns off the power and sets the brake, in view of the passenger, indicating to him that the car is going to be stopped that he may get aboard, and he, without negligence, attempts to do so, the contract of the carrier and passenger is complete; for the passenger understands from the movements of the motorman that his offer to become a passenger is accepted and he may act on it with as much reliance as if the offer and acceptance had been reduced to writing, and the offer cannot be repudiated or avoided by showing on the part of the company that the motorman turned off the power or set the brake for some purpose other than taking on passengers, if such other purpose was not in some way communicated to the passenger. A secret intention or mental reservation on the part of the motorman, in respect to the handling of his car, is no more available to disprove a contract of carriage than is a secret intention or mental reservation of a party to a written contract available to show that he did not intend to be bound by the contract as written.

3. The defendant asked the following instruction:

“The court instructs the jury that if plaintiff attempted to board defendant’s car while the same was in motion and going at such a rate of speed that a person of ordinary care and prudence would not have attempted to board the same under the circumstances, then he was guilty of contributory negligence and cannot recover in the cause, whether the defendant was negligent or not, and if you find from the evidence that plaintiff did sc attempt to board such car while so moving, then your verdict will be for the defendant.”

■ The court modified the above instruction by inserting the following clause “and that that fact directly contributed to cause the plaintiff’s injury.” between the word “circumstance,” in the fifth line and the word “then,” in the sixth line, of the instruction and gave it as thus modified. The modification of the instruction is assigned as error. According to plaintiff’s evidence, he landed safely on the step of the car and was thrown thereform by the sudden forward lurch of the car; if so, then his attempt to board the car while it was in motion was not the proximate cause of his injury, hut the sudden lurch of the car, which caused him to fall. In the light of this evidence, we think the modification of the instruction was proper.

4. The court modified defendant’s instruction numbered seven by inserting the words “of itself’’ between the words “not” and “authorized,” in the last line of the instruction. It reads as follows:

“The fact that the motorman failed to stop the car for the plaintiff to get on, if you find it from the evidence to be a fact, does not authorize the plaintiff to recover,' because that is no part of the cause of action alleged by the plaintiff in his petition.”

The modification was harmless and in nowise altered the sense or meaning of the instruction.

The court gave the following instruction for defendant:

“If the jury find from the evidence that plaintiff attempted to board a moving car while said car was moving at a rapid and dangerous rate of speed, without invitation, inducement or direction of defendant’s agent in charge of said car, then the plaintiff assumed the risk of injury to himself in making the attempt to so board said car; and if the plaintiff’s alleged injuries were either caused or materially contributed to by the plaintiff’s effort to so board said car, then your verdict must be for the defendant.”

And refused the following:

“The court instructs the jury that if you find from the evidence that plaintiff attempted to board one of defendant’s cars when it was running at a speed of eight or ten miles an hour, or at a greater rate of speed, and that the speed of the car caused him to be thrown and injured, then if you so find and believe, the court instructs you that plaintiff is not entitled to recover and your verdict will be for defendant.”

The conductor testified that the car was under full speed (about ten miles an hour) when plaintiff attempted to board it. The motorman testified that, to the best of his judgment, the car was running at a speed of from ten to twelve miles per hour.

In Heaton v. Railway, 65 Mo. App. 479, it was held negligence, as a matter of law, for one to attempt to board a steam railroad train, running at a speed of not less than six or seven miles per hour, knowing that the train was not going to stop. And in Murphy v. Railroad, 43 Mo. App. 342, it was held that it would be negligence per se for one to attempt to get on a steam railroad train running at a speed of six or eight miles per hour.

In Eikenberry v. St. Louis Transit Company, supra, we held that the plaintiff was not guilty of contributory negligence in attempting to board a street car that had been slowed down to a speed of four or five miles per liour, when the plaintiff had good reason to believe it was about to stop to take on passengers. But there must be a limit somewhere and that it is the limit, when the car is running at a speed so great that it is obviously perilous to attempt to- board it. That such peril is obvious where the car is running at a speed of eight or ten miles an hour, cannot admit of two sane opinions.

We think, under the evidence adduced by the defendant, that the refused instruction should have been given, and that the error was not cured by the one that was given on contributory negligence.

The judgment is reversed and the cause remanded.

All concur.