Craig v. United Railways Co.

158 S.W. 390, 175 Mo. App. 616, 1913 Mo. App. LEXIS 237

Opinion

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries through the alleged negligence of defendant.' Plaintiff recovered and defendant prosecutes the appeal.

Defendant, an incorporated company, is a common carrier of passengers in St. Louis. Plaintiff boarded one of its street cars operated on the Iiamilton.Avenue Line, at Wellston, paid her fare and took passage to the ear barns at DeBaiiviere and Delmar avenues, where she contemplated transferring to another line for her home. The conveyance was one of those known as a “pay-as-you-enter car.” In street cars of this pattern, one enters by means of a step and platform in the rear of the box, where the conductor is stationed to collect fares; but the rear exit of such cars is through, another door beside the conductor’s box and by means of a step' adjacent, though distinct from that on which the entrance is made.

Plaintiff remained in the car, after entering it at Wellston, until it reached the terminus and entered the barn, where she undertook to alight therefrom, to.the end of going upon another ear on defendant’s Creve Coeur Line. The date was February second and the time about .five fifteen in the evening. It is said that darkness prevailed, though the lights in the car and car barn were aglow. Upon the stopping of the car in the bam, the conductor opened the door for the exit of passengers, and passed out to the company’s office, immediately preceding plaintiff in alighting therefrom. Plaintiff passed from her seat iu the car through the usual exit so opened by the conductor, and, as she placed her foot upon the step furnished for that purpose, she slipped and fell, to her injury, which appears . to be a serious and probably a permanent one. Plaintiff’s fall was occasioned by the accumulation of slush and ice and mud on the step provided for the exit of passengers.

It appears that considerable snow had fallen during the early morning of that day, but the storm had ceased before noon. Thereafter the sun shone brightly, and the snow melted for a time, so as to become slnsby; but late in tbe afternoon, the weather became colder and freezing, and ice formed because of that^fact. Plaintiff says she observed neither mud nor slush nor ice on the rear step of the car as she entered it at Wellston, and, indeed, observed none as she passed out of the exit until after she had slipped off of the step and fallen to the ground below. However, immediately after slipping upon the step and falling, plaintiff turned about and saw the accumulation of slush, ice and mud on the step which conduced to precipitate her forward to her injury. The trip from Wellston to defendant’s car barn where plaintiff slipped and fell is a short one and consumes but fourteen minutes in transit.

For defendant, the evidence tends to show that the particular ear in question operated only between these two points, and that the steps were inspected at either énd of the line and cleaned before returning. The conductor testified that he had the steps of'the car well cleaned of the accumulated slush and snow about fifteen minutes before plaintiff’s fall therefrom and immediately before starting from ’Wellston where she boarded it. Because of this testimony and because plaintiff said she observed no slush or ice on'the step in the rear of the conductor’s box where she entered, upon boarding the car at Wellston, it is argued the court erred in declining to direct a verdict for defendant. The argument proceeds on the theory that a common carrier of passengers discharges the full measure of its duty by inspecting its appliances immediately before starting on the trip .and removing slush or accumulated ice from the steps of the car at that.time.

It is true that a common carrier of passengers is not an insurer of their safety, and it is true, too, that the law does not cast upon such carrier the obligation of a continuous inspection of its cars while in transit, if it has made a careful one before starting. But though such be true, the obligation which the law does annex to the calling is to exercise high care at all times for the safety of passengers, and the question in judgment is, of course, to be determined with reference to the duty thus imposed and the consideration is to be had with reference to the facts of the particular case. The relation of passenger and carrier certainly continues until the passenger has alighted from the car. [See Fillingham v. St. Louis Transit Co., 102 Mo. App. 673, 77 S. W. 314.] Therefore, the obligation of high care obtains with respect to the safety of the steps provided for the exit of passengers and enjoins the duty upon the carrier to be alert toward keeping them free from ice, snow and mud which may occasion an injury. [See Timpson v. Manhattan Ry. Co., 59 Hun (N. Y.), 489 ; Gilman v. Boston & Maine Railroad, 168 Mass. 454 ; Simon v. South Side, etc., R. Co., 161 Ill. App. 502 ; Nellis, Street Rys. (2 Ed.), sec. 288.]

The mere fact that plaintiff said she noticed neither mud nor slush nor ice upon the step as she boarded the car at Wellston is not conclusive against her right of recovery, for the reason that she did not enter over and employ the step from whence her exit was made and on which it appears ice, slush and mud had accumulated. It is true the two steps are adjacent and, indeed, formed by utilizing a continuous running board on the same level for both. Nevertheless they are separate and distinct, in that each accommodates a different use or compartment, as the one for ingress and the other for egress of passengers. Even though such be true, upon the hurry incident to one entering a street car over the rear step and rear platform around the conductor’s box to the door provided for the ingress of passengers on these new carriages known as the “pay-as-you-enter ears,” it is not at all probable that careful observation will be made with respect to the condition of the adjacent step provided for the passengers in course of exit from the same car. One’s thought is usually sufficiently occupied in making observation concerning the step in use in the course of entry alone without more. Such would seem to be the dicta of human experience touching the matter. This being true, it may be the fact, as well, that slush and ice were then accumulated- on the step on which plaintiff slipped and received her fall fifteen minutes after-wards at the car barns, and she not having observed it.

It appears that some ten or twelve passengers alighted from the car at different places during the fourteen minutes consumed in transit from Wellston to the car barn, and while the evidence is not clear with respect to the matter, it is said in the brief that they passed through the identical exit and over the step- on which plaintiff afterwards slipped. Because of this and because of the fact that the conductor stated he removed the slush and ice before the car left Wellston, it is urged that no recovery may be allowed, for the reason such slippery accumulations as were on the step when plaintiff fell were obviously deposited there from the'shoes of the passengers so passing out before her. It is, no doubt, true that the evidence affords an inference of fact in favor of defendant to the effect suggested, but, in dealing with the question of a peremptory instruction acquitting all liability to respond for an'injury, such inference's may not be utilized against the injured party. [See Buesching v. St. Louis Gaslight Co., 73 Mo. 219.] Indeed, on this- question it is the duty of the court not'only to dispel fair inferences infavor of the defendant, as though they were rejected by'the jury, but to allow all of them in favor of plaintiff, in aid of the verdict, as if utilized by that tribunal on the'trial. Thus viewed, there is no evidence whatever that mud or slush' or ice were deposited on the step by the passengers who’ passed out over it before plaintiff, and it inay be that none was upon their shoes to-deposit fheré. It is certain we may not infer it.

' Though it may 136 true that, after having cleaned the step at starting, deféndant is not required to keep up a continuous inspection while the car is en route from one end of the line to the other, it is true too that the obligation of high care attends it at all times while engaged in the pursuit of tho calling of a common carrier of passengers. If it conclusively appeared — that is, as though admitted — that the slippery substance oh the step of the car was deposited there by the passengers passing out, as suggested in the argument, that those in charge of tho ear were not aware of it, and that none of it was present before the car started from Wellston, it may be that no liability should be declared against defendant for its omission to stop the car and remove it en route. [See Vancleve v. St. Louis. M. & S. E. R. Co., 107 Mo. App. 96, 80 S. W. 706 ; Proud v. Philadelphia & Reading R. Co., 64 N. J. L. 702.] But even then the question of defendant’s observance of the obligation of high care would, no doubt, turn upon the showing with respect to the notice the employees had of such deposits, the probable danger in the situation, etc., for it is not to be doubted that the extraordinary degree of care imposed upon such carriers requires the removal of ice and snow from the steps of the car, in some cases, for the safety of passengers, even en route. Especially is this true in cases where a substance is being deposited upon the steps and rapidly freezing because of the extreme cold during the transit. The obligation of high care is to be considered in connection with the circumstances of the case, and, as prudent persons, those in charge of the car are deemed in law as anticipating serious results from such freezing weather when such deposits are known to be on the steps. [See Haas v. St. Louis & S. E. R. Co., 128 Mo. App. 79, 106 S. W. 599 ; Weston v. The New York El. R. Co., 73 N. Y. 595.]

But be all of this as it may, the evidence is that there was slush and mud and ice on the step when plaintiff passed out of the car and that she slipped thereon and was precipitated to her injury because of it. This being true, it was competent for the jury to find that the deposit of slush and mud was made even before the car departed from Wellston, for the fact of freezing alone and thus producing ice indicates it was present on the step for some considerable time. The car had left Wellston but fourteen minutes before, according to all of the evidence, and it is entirely clear that the jury were authorized to infer from this that the slush and mud were then present and not removed from the step before leaving Wellston or else the freezing would not have occurred. [See Gilman v. Boston & Maine Railroad, 168 Mass. 454 ; Simon v. South Side, etc., R. Co., 161 Ill. App. 502.] The mere fact that defendant’s conductor testified that he removed the slush and mud from the step at Wellston and cleaned it with care is of no avail here, and this is true though such evidence was uncontradicted by other witnesses at the trial. Of course, if such were an admitted fact in the case, another question would arise. But the mere fact that the testimony of a witness is uncontradicted does not place the fact concerning which he speaks in the category of an admission and conclude it as a proposition conceded to be true. Such testimony, though uncontradicted, is, nevertheless, merely evidence for the jury, for it is within the 'exclusive province of that tribunal to pass upon the credibility of the witnesses and determine the weight and value to be given to their testimony. [See Gannon v. Laclede Gaslight Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907.] The court did not err in refusing to direct a verdict for defendant, and the case is a proper one for the jury.

Plaintiff’s first instruction is as follows:

“If you believe from the evidence that plaintiff was on or about the 2nd day of February, 1909; a passenger on one of defendant’s Hamilton avenue cars, then it was the duty of the defendant to exercise toward her the utmost care, skill and vigilance to carry her safely to her destination, and also upon her arrival there, to provide a step which was reasonably safe and suitable for plaintiff to alight therefrom; and if you further believe from the evidence that the agents and servants of defendant in managing said car failed to exercise the utmost care, skill and vigilance, and that by reason thereof, ice and dirt were allowed to remain on said steps, and that said step thereby was not a reasonably safe and suitable step for plaintiff to alight, by the use of care and caution on her part, and that when said car was stopped at plaintiff’s designation and that in alighting from said car, by reason of the ice and dirt on said, step', plaintiff fell and was injured, your verdict will be for the plaintiff, providing at the time of said injury, plaintiff was exercising ordinary care and caution under the circumstances for her own safety.”

It is urged this instruction is too general in character; that is to say, that it authorized a verdict for plaintiff even though the jury may have believed the conductor removed the slush and ice from the step immediately before the car departed from Wellston and that the accumulation there was from the feet of passengers disembarking, without notice of the deposits to those in charge, while the car was en route, The instruction is general in character and omits to reckon with the facts in evidence as it should. Indeed it ignores evidence favorable to defendant. If the jury should believe the conductor cleaned the step immediately before leaving Wellston and that such accumulations of slush, mud and ice thereon which occasioned plaintiff’s injury on arriving at the car barns were deposited en route, through the exit of passengers over it, and those in charge of the car were not apprised of the-deposit on which the extreme cold operated during the fourteen minutes in transit, it is clear defendant should be acquitted of fault — that is, if those in charge of the car, though exercising high care, failed to observe and correct the condition. [See Vancleve v. St. Louis, M. & S. E. R. Co., 107 Mo. App. 96 80 S. W. 706 ; Proud v. Philadelphia & Reading R. Co., 64 N. J. L. 702.] The instruction omits to reckon with the evidence touching this phase of the case and through ignoring it seems to authorize a recovery in any event, if defendant’s servants managing the car failed to exercise the utmost skill in respect of the step, though they had no notice of its dangerous condition, which may have accrued solely in transit. In this respect it is insufficient, though it is not inconsistent with those given for defendant. But by instruction No. 4 given on the part of defendant, its general character was fully supplemented and rendered immune from successful attack. The instructions are to be read together, and, if not inconsistent, one in general terms, but of proper scope, may be aided by another so as to dispel its otherwise baneful influence. By defendant’s instruction the jury were told that in no event could a recovery be had by plaintiff if it believed the step was cleaned at Wellston and the dangerous condition resulted from deposits thereon while the car was en route. As defendant’s instruction was so pointed and definite, and, indeed, so extremely favorable, even more than the law allowed to it with respect to this matter, it cannot be said that prejudicial error appears when the two are read together. [Meadows v. Pacific Mut. L. Ins. Co., 129 Mo. 76, 97, 31 S. W. 578 ; Jackson v. W. U. Tel. Co., 174 Mo. App. 70, 156 S. W. 801.]

A point is made against plaintiff’s third instruction but we do not regard it of sufficient merit to warrant discussion. No prejudicial error appears and the judgment should be affirmed. It is so ordered.

Reynolds, P. J., and Allen, J., concur.