Moeller v. United Railways Co.

112 S.W. 714, 133 Mo. App. 68, 1908 Mo. App. LEXIS 308

Opinions

BLAND, P. J.

Defendant maintains and operates a double-track electric railroad, running from the western limits of the city of St. Louis west to Creve Coeur Lake, in St. Louis county. Its road crosses the Colorado steam railroad track on a wooden trestle, about three miles east of Creve Coeur Lake; west of, and running to the trestle, is a fill or embankment about forty-two feet deep; on top of this embankment, and reaching to the east end of it, are platforms about forty-eight feet long and six feet four inches wide, maintained for the accommodation of passengers to get on and off defendant’s cars. The platform on the south side of the railroad was constructed by laying heavy timbers and filling in cinders between them. The south side of the platform is protected by a railing, and the west end by a bent or brace, running from the railing down to the timbers, but there is no railing or other guard on the east end. This platform is called in the evidence, “the Colorado crossing,” and is a regular place to receive and discharge passengers. Plaintiff, at the time he was injured, was twelve years of age, and lived with his parents on a farm near Creve Couer Lake. On December 19, 1905, he took passage on one of defendant’s cars to be carried to the Colorado crossing, on his way to a school, of which he was a pupil, one-fourth mile from the crossing. When the crossing was reached,' he undertook to get off the car on to the south platform, and by the motion of the car was precipitated over the east end of the fill or embankment and injured. The action is to recover for the injury.

Tlie specific acts of negligence charged in the petition are, first, that defendant negligently failed to place a guard or rail at the east end of the platform; and second, that it negligently started the car forward with a quick jerk as plaintiff was alighting, causing him to he thrown over the dump. The answer is a general denial and a plea of contributory negligence.

At the close of plaintiff’s case he was forced by the ruling of the trial court to take a nonsuit. His motion to set aside the involuntary nonsuit was denied and he appealed to this court..

Plaintiff testified that in December, 1905, and prior to the nineteenth of that month, he had ridden on defendant’s cars from Creve Couer Lake and got off at the Colorado crossing four or five times, and knew the east end of the platform was not guarded. He testified he. had watched brakemen get on and off moving cars and knew the position they took on the car to get off. He stated that when he got on the car he paid the conductor his fare and seated himself on the back seat of the car; that when the car was within about two miles of the Colorado crossing, he spoke to the conductor and told him to let him off at the crossing; that the conductor said, “All right, I will,” that the conductor was sitting in the second seat ahead of him when the car was near the crossing, reading a newspaper; that when the car was within about half a block of the crossing, he (plaintiff) left his seat, went out on the back platform and took a position on the steps with his face toward the car, holding on with both hands — the position he had seen brakemen take to alight from moving cars; that the car slowed up as it neared the platform but was running too fast for him to get off when it reached the platform, and he “waited for it to slow up some more before getting off;” that it did slow up some and when it got within about three feet of the end of the platform it was running a little faster than a walk, and he then attempted to alight; that just as his right foot touched the platform, his left being still on the step, the speed of the car was accelerated, causing him to be thrown around and to stumble against the timber at the outer edge of the platform and to turn a somersault over the end of the embankment, falling on his stomach. He became very sick in a short time, vomited blood and was seriously ill for several days. He has, however, entirely recovered.

1. In view of the fact that there is no evidence showing or tending to show, that passengers got on or off defendant’s cars at the Colorado crossing in the nighttime, or that the platform ever became crowded with passengers in the day time, I do not think a court would be justified in holding that the failure of the company to maintain a guardrail at the east end of the platform, to protect people from falling down the embankment, was negligence per se. But if a guardrail can be maintained at that point without interfering with cars running upon the tracks, then I think it should be left to the jury, under appropriate instructions, to find whether or not the company was negligent in failing to erect and maintain a guardrail at the east end of the platform.

2. Does plaintiff’s evidence tend to prove defendant’s servants in charge of the car were guilty of negligence, in accelerating its speed in the circumstances testified to by plaintiff? Plaintiff did not ring the enunciator bell. In fact there is no evidence showing that he knew the car was equipped with enunciators; on the contrary, from the fact that he verbally requested the conductor to let him off at the Colorado crossing, the inference is that he did not know the car was equipped with such appliances. The conductor did not give the motorman a bell to stop the car at the Colorado crossing. He was sitting with his back to plaintiff when the latter left the car and took his posi tion on the rear step preparatory to alighting, and there is no evidence that the conductor actually knew plaintiff was attempting to leave the car. From these facts in evidence, it is argued by defendant’s counsel that it was not negligence to accelerate the speed of the car as plaintiff was getting off. This argument leaves out of view the evidence that plaintiff had orally announced to the conductor that his destination was the Colorado crossing, and that the conductor told him he would let him off there. Plaintiff had a right to rely on this promise and was not bound to ring the bell to give notice of his wish to leave the car at the crossing. The notice had been given and accepted by the conductor as sufficient before the crossing was reached and it was his duty, without further notice, to give the motorman a bell to stop the car; not only was it his duty to do this, but also to pay attention to plaintiff while he was alighting from the car. Had he attended to these duties, plaintiff would not have been injured. Instead of attending to his duties, the conductor allowed himself to become absorbed in a newspaper and seems to have forgotten he had a boy passenger, whom he had promised to stop the car at the crossing; and as the car and its movements were under the control of the-conductor, I think the company should be charged with negligence in accelerating the speed of the car as plaintiff was ¡alighting from it. But it is contended that no such negligence as this is charged in the petition. The petition charges that after plaintiff entered the car and paid the conductor his fare, he told the conductor of his intention to leave the car at the platform “and asked the conductor to have the car stopped to allow him to alight at that point; that as the car approached said trestle work and platform it slowed down as in ■response to plaintiff’s request, and as if for the purpose of allowing plaintiff to alight upon said platform; that as it so slowed down the plaintiff left his seat, went to the rear platform and. down upon the lower step of said car, and when the car had so slowed down at said place when it was opposite to said platform, and while it was moving slowly, the plaintiff attempted to alight from said car upon said platform, bnt this plaintiff says that while he Avas so in the act of alighting from said car, the defendant, through its agents and servants in charge of said car, negligently, carelessly and recklessly caused and suffered the speed of said car to be suddenly and greatly accelerated and caused the same to start forward with a jerk, whereby plaintiff was thrown with great force and violence upon said platform, lost his balance and was by reason of defendant’s negligence in maintaining its platform in the negligent manner above set forth, caused to fall dovm said embankment upon the ground.” This allegation of negligence is broad enough to embrace every negligent act or omission of duty on the part of the conductor in respect to stopping and starting the car, and it was not essential, as defendant’s learned counsel seems to contend, that plaintiff should have set forth in his petition the evidence upon which he relied to prove the negligence charged therein, which he must have done to make a specific charge of each and every act and omission of duty of the conductor causing plaintiff’s injury. The gist of this assignment of negligence is that on plaintiff’s request the conductor promised to let plaintiff off at thet Colorado crossing; that the speed of the car was checked as it approached the crossing, thereby inducing plaintiff to believe the conductor was about to comply with his request and have the car stopped, and in this belief plaintiff prepared to alight but as he was in the act of alighting the car was started at an accelerated speed, causing the injury. The car was under the conductor’s control and it is not out of place or stating the law too strong to say that it was his duty to see that plaintiff Avas offered an opportunity to alight from the car in safety and any neglect of this duty was negligence for which the defendant is liable.

3. Does the evidence conclusively show plaintiff was guilty of such contributory negligence as to bar a recovery? If the suit was by an adult, I would not hesitate to answer this question in the affirmative, but plaintiff being a minor, the law does not hold him to the same degree of care as it does persons of mature age. This doctrine of the law is well stated by Johnson, J., wilting the opinion for tlie court, in Mann v. Railway, 123 Mo. App. l. c. 491, as follows: “The conduct of a boy twelve years old should not be measured by the standard of care applied to an adult because the immaturity of youth ordinarily embraces not only an imperfect knowledge of natural facts and laws and of the proper relation between cause and effect, but when possessed of those elements necessary the exercise of reasonable care it still lacks the discretion, thoughtfulness and judgment presumed to be an attribute of the ordinarily prudent adult and which may he said to come only with experience. Thoughtlessness, impulsiveness and indifference to all but patent and imminent dangers are natural traits of childhood and must be taken into account when we come to classify the conduct of a child. [Anderson v. Railroad, 161 Mo. 411, 61 S. W. 874; Burger v. Railroad, 112 Mo. 238, 20 S. W. 439.]”

Plaintiff being a minor should only be held to the exercise of that degree of care which would be expected of one of his age, experience and capacity, and the question of whether or not he was guilty of contributory negligence was for the jury, unless the only conclusion that can reasonably be drawn from the evidence is that he was guilty of contributory negligence. [Anderson v. Railroad, 161 Mo. 411; Campbell v. Railroad, 175 Mo. 161, 75 S. W. 86; Heinzle v. Railroad, 182 Mo. 528, 81 S. W. 848; Anderson v. Railroad, 81 Mo. App. 116; Fry v. Transit Co., 111 Mo. App. l. c. 333, 85 S. W. 960; Edwards v. Railroad, 112 Mo. App. l. c. 659, 87 S. W. 587; Butler v. Railroad, 117 Mo. App. 360, 93 S. W. 877.]

Defendant cites the cases of Graney v. Railroad, 157 Mo. 666, 57 S. W. 276; Spillane v. Railroad, 135 Mo. 414, 37 S. W. 198; Payne v. Railroad, 136 Mo. 562, 38 S. W. 308, and Walker v. Railroad, 193 Mo. 453, 92 S. W. 83, as sustaining its contention of contributory negligence. In the Graney case, James, the plaintiff’s son, was drawn or sucked under a rapidly moving train and killed. At page 679, the court said: “His comrades who were there pi*esent with him before the train arrived at the crossing, when the train was seen approaching, all say that it was running very rapidly. He was( in a position to see the train, and it will be presumed in view of the surrounding facts as testified to by the witnesses present, that he did see the train. If he did, then his age, nearly twelve years, his brightness and intelligence, his familiarity with the operation of trains and the dangers incident thereto, must, under the decisions of this court, place him on the same plane as if sui juris.’’. The facts do not fit the facts in this case, for there is no evidence that plaintiff was sufficiently familiar with the operation of street cars, or of the laws of motion, to appreciate the danger of getting off a moving car. What is decided in the Spillane case is that the law will require a boy nine years of age to exercise care commensurate with the intelligence, capacity and experience he is shown to possess.

In the Payne case, a negro boy eleven years old was struck and injured by a train at a road crossing in Higginsville, Missouri. All the warnings available were given as the train approached the crossing and there was no evidence of negligence on the part of the trainmen. At page 585, the court said: “The testimony of plaintiff and of his mother abundantly establish that his judgment and discretion, his ability to take care of himself, were adequate to that task; indeed were equal to the judgment and discretion of the average man of mature years. This being the case, it is difficult to see why the same rule as to contributory negligence should not apply to a boy equal in capacity and intelligence to the average man as to the danger to be apprehended and guarded against in crossing a railroad track, as should apply to such man.”

In the Walker case, the deceased, a boy fourteen years old, for several years preceding the accident, had hauled timber to coal mines near the railroad crossing. When he and his step-brother, two years younger, had unloaded the wagon and were ready to start home, plaintiff warned them that the regular passenger train was about due. They stopped about fifty feet from the crossing, looked and listened for the train, but neither saw nor heard it, and then proceeded slowly up the slightly-inclined grade to the track, looking in the opposite direction at some boys carrying fish, but at no time thereafter looking or listening for the train, which was coming at a very rapid rate, and did not discover it until it was too late for them to get across to safety. There was evidence that the whistle was not sounded within eighty rods of the crossing and that the bell was not kept ringing, and failure in that regard is the negligence relied upon by plaintiff. Deceased and his step-brother were not discovered by the engineer or fireman until it was too late to stop the train in time to avoid striking the wagon. “Held, that, the case having been submitted to the jury on instructions asked by both sides that deceased was sui juris, it will be considered in this court on the same theory, and a verdict and judgment for plaintiff must be reversed, on account of concurring negligence. Semble, under the facts of this case, decedent was guilty of contributory negligence as a matter of law.”

None of these cases militate in the least against What I hav.e quoted from the Mann case and are not authority for the contention that plaintiff should, on his own evidence, be held guilty of contributory negligence as a matter of law. Plaintiff is a farmer boy and the only experience he had had in riding on cars, previous to his injury, so far as the evidence shows, was the four or five trips he had made on defendant’s line from Creve Coeur Lake to the Colorado crossing. He had seen brakemen get off running' cars, but there is no evidence that he had ever alighted from a moving car or train of cars prior to the day of his injury. From his examination, we judge him to be a boy of average intelligence for one of his age, but his knowledge of the effect of physical forces that operate against one in getting off a moving car was doubtless very meager. He had a pupil’s anxiety to reach the schoolhouse by the time school opened, and probably thought if he was carried beyond the crossing, he would be tardy, and the fact that the car slowed up as it approached the crossing probably led him to believe it would stop, as the conductor told him it would, to let him off. He waited for the car to stop as long as he could, to alight on the platform. In these circumstances, I do not think one of his age and lack of experience should be held, as a matter of law, to have had sufficient'judgment and discretion to discern the risk he incurred by getting off the car traveling at the speed he described, and that he should not have been nonsuited. It seems to me the question whether or no he was guilty of contributory negligence was one for the jury to pass on. Wherefore, the judgment is reversed and the cause remanded.

Goode, J., concurs. Nortoni, J., dissents and requests that the case be certified.