Brod v. St. Louis Transit Co.

91 S.W. 993, 115 Mo. App. 202, 1905 Mo. App. LEXIS 401

• Court: Missouri Court of Appeals
• Decided: November 14, 1905
• Status: Published

Opinion

BLAND, P. J.

(after stating the facts). — 1. It is the well-settled law, often repeated by the Supreme Court, that a carrier of passengers, whether by steam or street railway, is required, so far as it is capable, by a very high degree of care, to carry them safely and it is responsible for all injuries resulting to its passengers for even the slightest negligence on its part. [Clark v. Railway, 127 Mo. l. c. 208, 29 S. W. 1013; Hite v. Railway, 130 Mo. l. c. 139, 31 S. W. 262, 32 S. W. 33; Combs v. Sullivan County, 105 Mo. l. c. 233, 16 S. W. 916; O’Connell v. Railway, 106 Mo. 482, 17 S. W. 494; Sullivan v. Railway, 133 Mo. 1, 34 S. W. 566; Olsen v. Railway, 152 Mo. l. c. 432, .54 S. W. 470; Mathew v. Railway, 78 S. W. (Mo.) 271.] Plaintiff made a prima facie case by showing she was free from blame and that the accident occurred. [Olsen v. Railway, supra, and cases cited; Clark v. Railway, supra.]

In Clark’s Accident Law, Street Railways (2 Ed.), sec. 50, it is said: “Where an electric car burst into flames, the company must explain the cause of the Are.” This text is supported by Poulsen v. Railroad, 30 App. Div. (N. Y.) 246; Leonard v. Railroad, 47 App. Div. (N. Y.) 125; Buckbee v. Railroad, 64 App. Div. (N. Y.) 360, and Casady v. Railway, 68 N. E. (Mass.) 10, in all of which flashes of electricity and fires occurred on street cars in operation and carrying passengers. And in Poulsen v. Railroad, 18 App. Div. (N. Y.) 221, it was held: “Where an electric car burst into flames; and a child, who is in the car, becoming frightened, jumps out of it and is thereby injured, the railroad company is called upon to explain the cause of the fire.” In Hill v. Scott, 38 Mo. App. l. c. 374, quoting the language of M'r. Chief Justice Erie in his celebrated judgment in the case of Scott v. London & St. Catherine Docks Co., 3 Hurl. & Co. 596, 601, it is said: “There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.” Hill v. Scott is approvingly cited in Seiter v. Bischoff, 63 Mo. App. l. c. 160; Ward v. Steffen, 88 Mo. App. l. c. 576; Raney v. Lachance, 96 Mo. App. l. c. 484, 70 S. W. 376.]

In Turner v. Harr, 114 Mo. 335, 21 S. W. 737, the same rule of evidence was applied. Indeed, the judgment of Chief Justice Erie in the Scott case has been adopted as a rule of evidence in most if not all the states of the Union and by the Federal courts. [See note to Barnowski v. Helson, 15 L. R. A. (Mich.) 33.]

All the evidence conduces to show that the explosion, flash, or whatever it may he termed, was unusual and severe. It broke out the window glass in the car and set the car on fire, frightened the passengers, causing them to rush to the doors and open windows of the car to escape what appeared to them to1 be an impending danger. In the rush plaintiff either jumped or was pushed out of a window, receiving injuries. We think plaintiff was entitled to go to the jury on this evidence. But defendant contends that the petition alleges the explosion was caused by a defective motor and the plaintiff offered no evidence that the motor was defective. The petition does allege the motor was defective, but it does not stop with the motor; it also alleges that the machinery, appliances and parts thereof were defective, embracing within its scope every electric agency in or upon the car for its operation and is broad enough to take under its outspread wings not only the motor but any and all the other electric appliances or parts thereof with which the car was equipped, including the burnt-off wire which defendant’s witnesses testified caused the electric flash and fire.

2. The court gave the following instruction for plaintiff:

“1. The court instructs the jury that if they believe from the evidence that while defendant was operating with electricity, street cars as a common carrier of passengers for hire, the plaintiff on November 10, 1903, took passage on one of defendant’s cars, and paid her fare, and while she was being carried as such passenger, there was an explosion under the car occasioned by some.part of the apparatus, and that such explosion was followed by flame and fire in said car, from which the car took fire and began to burn, and that said explosion, flame, fire and burning of said car, were calculated to alarm and fill with fear and dread of injury or death from fire any reasonably prudent person who was a passenger upon said car; and if the jury further believe from the evidence that thereupon plaintiff became so alarmed and filled with fear and dread of being burned that she endeavored to escape from said car through the window thereof, in order to avert what she believed to be an imminent peril to her life, and that while she was thus endeavoring to escape she exercised such care as a reasonably prudent person would exercise under the same circumstances; and that in so attempting to escape she was hurt by being violently thrown upon the paved street; and if the jury believe from the evidence that such explosion, flame and fire and burning of said car were occasioned by any defect in the condition of said car or the apparatus thereof, or any improper management of said car, and if such defective condition or improper management resulted from any negligence on the part of the defendant, or its agents or servants, that is, any failure on their part to exercise the highest degree of care, skill and foresight of reasonably cautious persons engaged in operating electric street cars, then the jury will find for the plaintiff, and assess her damages, as stated in another instruction; unless the jury further find that plaintiff was guilty of negligence directly contributing to her injuries.”

Defendant criticises the instruction on several grounds, one of which is that it submits a cause of action not stated in the petition. The instruction in no way materially departs from the allegations of the petition. The petition is broad and so is the instruction. Plaintiff did not allege the specific cause of the explosion of the car nor did she prove the exact location or cause of the explosion and fire. She and her witnesses testified that the noise of the explosion came from beneath the bottom of the car, on the left side and near the front end, and that the fire enveloped the left side of the car. Plaintiff could not know and therefore was not required to allege the cause of the explosion and fire. She made a prima facie case by showing the unusual occurrence and it is this prima facie case the instruction submitted to the jury. The instruction is further criticised for having in it the following clause, to-wit: “were occasioned by any defect in the condition of said car.” The instruction is open to this criticism: there was neither allegation nor proof that the car itself was defective, and this clause should have been omitted from the instruction or have been stricken out; but we do not think the jury were or could have been misled by having their attention directed to the condition of the car as there was no evidence whatever that it was out of condition. The criticism in respect to the negligent management of the car is not just. There was evidence that the car was started forward on Vandeventer'avenue with a jerk, that too much power was applied to start the car and that when this is the case there is more likelihood of the fuse blowing out and an explosion than when the power is properly applied. Under this evidence, we think it was proper to direct the attention of the jury to the management of the car and instruct that if the explosion and fire were caused by the mismanagement of the motorman,- plaintiff was entitled to recover. The instruction properly defines the degree of care the defendant’s servants were required to exercise. The absence of the exercise of such care would be negligence and there was no need of a further elucidation of what constitutes negligence. It is further contended that the instruction is inconsistent with the following one given in behalf of defendant:

“If the jury find from the evidence that prior to the accident in question here defendant had employed competent inspectors to inspect the controller and motor, and other electrical appliances in use on defendant’s cars, and that such inspector had used a very high degree of care in making reasonable inspections of the car upon Avhich plaintiff was injured a short time prior to the time of her injury, and that such inspection failed to disclose any defect in the said controller, motors or electrical appliances, and that said car and its appli- . anees were apparently in a reasonably safe condition for the purposes for which it was being used by defendant, and that the accident in question here could not have been reasonably anticipated, foreseen or prevented by defendant by the exercise of a very high degree of care in inspecting said car and its appliances, then plaintiff cannot recover in this action and your verdict must be for the defendant.”

The instructions do not clash; the one for plaintiff submitted her prima facie case to' the jury; the one for the defendant submitted facts which, if found by the jury, would defeat plaintiff’s case. It told the jury, in effect, what would be an exercise of that high degree of care mentioned in plaintiff’s instruction and directed that if the jury found defendant had performed those acts (constituting a high degree of care) the verdict should be for the defendant. The instructions should be read together and when so read no conflict will be found between them. The series of instructions given for defendant fully and very fairly submitted to the jury every phase of defendant’s evidence, and while it seems, from a mere perusal of the abstracts of the evidence, that defendant’s evidence ought to have satisfied the jury that defendant used approved, modern appliances for the equipment of its car, that its inspection was as thorough as could be made and as frequent as necessary, the jury found against it and, apparently, against the weight of the evidence. But whether or not the verdict is against the weight of the evidence was a question addressed to the trial court by the motion for a new trial. In the exercise of its discretion, the trial court overruled the motion and its action in that respect is not reviewable here. Our function has been discharged by a review of the errors of law assigned in defendant’s briefs and nothing more remains for us to do but to affirm the judgment. The judgment is accordingly affirmed.

All concur.