133 Mo. 1 | Mo. | 1896
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The defendant is a street ear company, operating its cars on Jefferson avenue in the city of St. Louis. On the ninth of August, 1891, the plaintiff, a young lady, with a companion, another young lady, Miss Barrett, was apassenger on one of defendant’s cars in charge of Henry Reid, the driver. The car was what is known as a bobtail horse summer car, and the driver fills the place of both conductor and driver. The plaintiff and her friend were sitting on the back seat and the car was moving north. As the car reached a point near the northern line of Washington avenue, which it crosses almost at right angles, Henry Voss, another passenger, sitting opposite plaintiff, lit a cigarette and attempted to throw the match out of the back door. Plaintiff was dressed in a light, gauzy summer dress and in a moment after Yoss threw the match, plaintiff’s dress was discovered on fire. She screamed, as did the other ladies, four or five in number, and ran to the front door and told the driver she was afire. He immediately stopped his ear. In the meantime the passengers had all left the car and plaintiff ran off screaming. Mr. J. E. Robinson, living at number 700 Jefferson avenue, happened to be looking out of his window and saw plaintiff’s dress burning and with great presence of mind took a quilt and ran to her rescue and- smothered the flames as she ran up the steps of a hospital near by. Her hands and arms and side were severely burned, so much so that her left hand was crippled and rendered useless.
She sues the company for the negligence of its driver, the gravamen of her complaint being contained in this allegation of her petition: “That said defendant’s car was under the charge and control of its agent; that while this plaintiff was sitting in said car to be carried to the point of destination on Jefferson
The case was tried to a jury and a verdict returned for the defendant and judgment rendered accordingly.
To reverse the judgment plaintiff assigns two errors: First, in admitting in evidence an affidavit made by Miss Barrett, a witness for plaintiff, to contradict her evidence on trial; second, error in the instructions. Of these, in their order.
I. When this affidavit was offered, counsel waived all objections to it save that “the affidavit was taken by an agent of defendant without notice to plaintiff.” Russell v. Glasser, 93 Mo. 353. The witness did not admit she had made the statement shown her in her affidavit. She intimated very plainly that her statement had not been written down as she gave it. Nothing less than an unequivocal admission that the witness made the very statement attributed to him or her will deprive the other party of proving the statement. Peck v. Ritchey, 66 Mo. 114. That a witness may be impeached
The mere fact that the sworn statement was procured by an agent of the party offering it, does not affect its competency. If it be claimed that any fraud was perpetrated in suppressing a part of the statement or that a statement is inserted which the witness insists he did not make, he is entitled to explain it, and the whole matter is left to the trier of fact, whether court or jury, to weigh the credibility of the witness; but it does not affect the admissibility of the statement. There is no merit in this assignment. Bogie v. Nolan, 96 Mo. 85, overruling Priest v. Way, 87 Mo. 16.
II. That the court erred in not instructing the jury as to the proper degree of care required of a carrier of passengers we think is true. While not insurers, street car companies are carriers of passengers, and are held to that high dpgree of care that is demanded of other railways in carrying passengers, that is to say, the highest degree of practicable care and diligence which prudent men would observe in a like business, and under similar circumstances. Jackson v. Grand Ave. R’y Co., 118 Mo. 199; Clark v. Railroad, 127 Mo. 197; Waller v. Railroad, 83 Mo. 608; Furnish v. Railroad, 102 Mo. 438.
But conceding this, how could the jury háve reached a different conclusion. Plaintiff’s counsel admit that the starting of the fire was in no manner attributable to any negligence on part of defendant. A fellow passenger threw a lighted match into plaintiff’s dress in an open summer car. Her dress was of the lightest material, and before defendant’s driver knew anything of it, or by the exercise of the highest
The evidence of the driver, who had died in the meantime, was preserved in a deposition, and.he testified he burnt his hands in the effort to assist plaintiff; that he called to Yoss, who dropped the match, "to pull her dress off of her.”
Considering the rapidity with which her dress burned; the circumstances under which it was ignited, and the promptness of the driver in stopping the car; the escape of plaintiff from the car by the reár door before the driver could possibly reach her, after halting his team, it must be ruled that this deplorable accident was in no manner the result of any negligence of wrong on the part of defendant or its servant, but was wholly attributable to the party who carelessly threw the match into the inflammable material of which plaintiff’s dress was made, and there is no evidence
It is due to the driver to say that the allegations that he forced her off the car and treated plaintiff brutally were not supported by the evidence nor credited by the jury and plaintiff’s evidence of his swearing at her or pushing her can well be attributed to her very great excitement at the time.
The verdict of the jury was for the right party notwithstanding the errors in the instructions, and the judgment will not be reversed under such circumstances. Judgment affirmed.
SEPARATE OPINION.
I would have thought the foregoing case correctly decided, but for the recent decision in Fuchs v. St. Louis, 31 S. W. Rep. 115, where it is said:- ‘‘All the facts which made the sewer dangerous might fairly have been found to be within the knowledge of the city officials after the lapse of time following the fire. * * * Carefully managed sewers do not, according to the common experience of men, usually blow up and scatter destruction and death. Such a performance is of itself entitled to consideration, on the issue of care in respect of such property; or, as some jurists have said, ‘The thing itself speaks.’ Had the cover of the large opening west of the saloon been removed, so as to allow the direct escape of the gas at that point, it may be that the disaster would have been avoided. It was not removed; nor do any other steps appear to have been taken in regard to the care of the sewer by the city authorities after the flow of the oil into it on the twenty-second day of July. It is not always consistent with common prudence to
Adopting the language just quoted as peculiarly applicable to the case at bar, wherein (like Fuchs’s case) no such accident, it seems, had ever occurred in a street car before, let me apply to the case in hand the principles so succinctly and lucidly announced and luminously expounded in Fuchs’s case.
And in making such application, I find that this ease is far stronger in its facts for warranting a recovery than that case, for the reason that matches, since their invention, and when in careless hands, have frequently set fire to dresses, and other things, thereby causing extensive conflagrations. And it is a well known fact (a fact so well known that judicial notice may be taken of it), that men ride in these “open summer ears,” that while thus riding it is quite a common occurrence for them to light and smohe cigarettes. And it is also a common and well known fact that ladies in warm weather, frequently wear dresses of a light, gauzy, and tinder-UJce material as that worn by plaintiff. Bo that on that ninth day of August, 1891, in that “open summer car,” you have assembled in close juxtaposition all of the constituent elements and conditions necessary to cause the injury which actually did occwr.
True, it does not appear that a lady’s dress ever before took fire from the careless dropping of a match in an “open summer car,” but that such and similar
Besides, it is not to be overlooked that in this case there was due to plaintiff from the defendant company the “highest degree of care,” while from the defendant city, in Fuchs’s case, there was due (if indeed any degree of care at all in respect to an unexpected explosion of gases),-only ordinary care.
Nor is it to be forgotten that in the latter case the .city was engaged in the performance of a public and governmental duty, promotive of the public health, in the discharge of which duty a municipality is never held liable, while the defendant company in this, instance was pursuing its own private business as a ■common carrier, for its own private gain.
When I thus contrast the facts in Fuchs’s case with those in the present action; when I consider the higher degree of care due in the latter case; when I .consider also, that accidents of ladies’ dresses catching fire are of frequent occurrence and of public notoriety, but that explosions from gases in sewers never had ■ occurred before the Fuchs incident, and yet that in the Fuchs case the city was held prima facie liable though ■no means or causes were pointed out either in the petir
And coupling together by quotation and paraphrase the forceful thoughts of my two distinguished associates within the narrow confines of a single page, I may, using as few as possible of my own poor words, by way of comment, observe further that had such fire extinguishers or a tank of tvater on top of the car %uith suitable hose attached extending down into the car been provided, “so as to allow the direct escape” of water at that point onto the burning dress, “if may be that the disaster would have been avoided!"
But neither extinguishers, nor tank, etc., were provided, “nor do any other steps appear to have been
On “carefully managed” horse cars, “according to the common experience of man,” cigarette smokers do not usually cast burning matches on ladies’ dresses and thereby scatter flames and danger of a burning death. “It is not always consistent with common prudence to -await a catastrophe before taking precautions against it.”'
No matter whether you have any reason to anticipate such a catastrophe or not, or whether, anticipating it, you could have done anything to prevent it. “Nor is it conclusive of careful management that a particu-lar disaster has never before occurred/”
“To what extent such foresight is demanded by the duty to use ordinary care it would be very difficult to say.” It would seem so, and it would further seem that if this court with all the facts before it which constituted and caused the unexpected and litigated injury declares it “very difficult to say” “to what extent such foresight is demanded by the duty to use ordinary care,” that assuredly a defendant should not be required to more clearly perceive by its “foresight” the extent of its precautionary duty than this court with all the light of surrounding circumstances is able to perceive after looking through its “hindsight.” But, I “shall not attempt to generalize (or particularise) on that topic now.”
In conclusion, I am forced to say that it will require something more penetrating and powerful than a cathode ray, to discover and discern the why and the wherefore that the plaintiff in Fuchs’s case should win, and the plaintiff in this case lose.