Reagan v. St. Louis Transit Co.

79 S.W. 435, 180 Mo. 117, 1904 Mo. LEXIS 53

• Court: Supreme Court of Missouri
• Decided: February 24, 1904
• Status: Published

Opinions

MARSHALL, J.

This is an action for damages for personal injuries.

The case is as simple a one of its kind as may be imagined. The plaintiff charges that she was a passenger on one of the defendant’s cars, and desired to get off of the car at the corner of Easton and Grand avenues; that when the car reached said place and whilst it “was slowed up so as to be moving imperceptibly, or stopped for the purpose of allowing the plaintiff to alight therefrom at her said point of destination, and, whilst the plaintiff was in the act of stepping off said ear, whilst so slowed up or stopped, and plaintiff is unable to say whether it was so slowed up or stopped, the defendant did, by its servants in charge of said car, carelessly and unskillfully cause and suffer said car to move forward and with increased motion, whereby plaintiff was thrown upon the street, and greatly and permanently injured,”.etc.

The petition further charges that the city ordinance provides that conductors shall not allow women or children to enter or leave a car while it is in motion, and that the defendant’s conductor “did allow said plaintiff to leave said car while the same was in motion,” which act directly contributed to the injury. The answer is a general denial and a plea of contributory negligence. ■

The plaintiff first read in evidence the city ordinance pleaded. She then produced four witnesses, to-wit, Dr. S. B. Prouty, Dr. R. L. Campbell, Mrs. Thomas McCune, and the plaintiff herself. The two doctors testified that they were her physicians after the accident, and they testified only to the extent of her injuries. Mrs. McCune testified that she is a cousin of the plaintiff, and that she nursed her after the accident. None of these witnesses testified as to the accident, and the defendant introduced no evidence whatever bearing upon any fact testified to by these witnesses, so that the testimony of these three witnesses was absolutely uncontradicted.

The plaintiff was the only witness, in her behalf, who testified as to the cause of the accident. The abstract of the record, of her testimony prepared by her counsel, covers a page and a half, and is here reproduced in full. It is as follows:

“Bridget Reagan, plaintiff, testified in her own behalf : That she is about 40 years old, and that her occupation was that of a cook. That she earned $19 per month. That on the evening of October 21st she boarded one of the defendant’s cars on Clara and Easton avenues, and that her place of destination was Grand and Easton avenues. That when she got within a block of Grand avenue she rang the bell to notify the conductor of her intention to get off the car, and when the car had passed the crossing of Grand avenue it stopped,. She then started to get off the car, and, as she was getting down on the last step, the car gave a jerk and threw her off. The conductor and a policeman were standing on tlie rear platform. She had to pass the conductor, who was in reach of her, and that he neither did nor said anything to her regarding her leaving the car. That there were two steps on the car, and that she was throivn as she was taking the last step. That she fell east of the crossing, near the curbstone. The policeman picked her up and carried her to the drugstore, on the north side of the street, and then took her in an ambulance to the City Hospital, where she remained twenty-four hours, and then she was taken to the St. Mary’s Infirmary, where she was treated by Drs. Prouty .and Campbell for twelve weeks. That she can not bear any weight on her injured limb, and can only move about with the aid of a chair, leaning on the back of it. That she has been unable to do anything since she was hurt. That she paid $72 for nursing.

‘ ‘ Cross-Examination:

“Am single and have lived in the city for sixteen years. At the time of the accident I was working for Mrs. Carter, as a cook. I occupied the second seat from the rear, sitting on the south side. Arose from my seat, as the car was about to stop, and went to the door, where I 'waited until the car had stopped. Then I stepped from the platform to the step, and when I started to leave the step to get to the ground the jerk came. That is what I meant when I said there were two steps.

“Q. Now, was it a hard or light jerk? A. Yes, sir; it was a hard jerk.

“Q. And was the car standing perfectly still at that time, was it — before the jerk? A. Yes, sir.

“I fell flat on the ground, with my head towards the east and my feet towards the west. Don’t know how far the car went after I fell, but it was only a little ways. Did not hear any signal given by the conductor to start the car. Have not been able to leave the house since the accident.”

The record shows that the defendant introduced five witnesses, who testified that they were on the rear platform, of the car at the time the plaintiff started to get off, at Grand and Easton avenues, and that she got off of the car. while it was moving slowly, but before it was stopped, and that the car stopped within a few feet after the plaintiff got off, and that there was no jerk nor increased forward movement of the car, and that plaintiff was not thrown off of the car, but that she voluntarily got off of the car while it was in motion, and fell after she got off in consequence of getting off while the car was in motion. The conductor testified that the plaintiff came out on to the back platform while the car was approaching Grand and Easton avenues, but that “there was nothing in her manner indicating that she intended to get off the car before it stopped.”

This was all the evidence in the case. The record then shows that the following proceedings were had:

‘ ‘ The Court: I will allow twenty minutes on a side to argue the case before the jury.

“Mr. Taylor: I ask that more time be given than that. That is too short.

“The Court: That is longer than I usually give. Fifteen minutes on a side ordinarily do.

“Mr. Taylor: Well, we except to the ruling of the court on the ground that it was not sufficient.

“The Court: I will give you fifteen minutes on a side. I understood you to say fifteen minutes would not be enough time, but that twenty minutes would be sufficient. ’ ’

The plaintiff saved an exception to this action of the court.

The court then, as shown by appellant’s abstract, instructed the jury as follows:

“Thereupon the court, at the request of the plaintiff, gave to the jury the following instructions:

“If the jury find from the evidence in this case that the defendant, on the 21st day of October, 1900, was operating the car mentioned in the evidence for the purpose of transporting passengers for hire from one point to another within the city of St. Louis, as a street railway company; and if the jury further find from the evidence that on said day the defendant by its servants in charge of its east-bound car received the plaintiff as a passenger thereon, to be carried to Easton and Grand avenues; and if the jury find from the evidence that the plaintiff paid her passage as such passenger to the defendant; and if the jury find from the evidence that said car was slowed down by defendant’s servant in charge, so that its motion was imperceptible, or stopped to enable the plaintiff to alight from said car at her point of destination; and if the jury further find from the evidence that whilst said car was so slowed down or stopped by defendant’s servants in charge of said car, to enable plaintiff to alight from said car at her said destination, the plaintiff proceeded to alight from said car at said point, and that whilst doing so defendant’s servants in charge of said car caused or suffered said car to be moved forward and with increased motion, and that thereby the plaintiff was thrown upon the street and injured; and if the jury further find from the evidence that defendant’s servants in charge of said car would, if they had exercised a high degree of care and skill, such as careful and skillful railway operators would exercise under the same or similar circumstances, have prevented such motion of said car at said time and neglected to do so; and if the jury find from the evidence that the plaintiff was exercising ordinary care for her own protection at the time of her injury, then the plaintiff is entitled to recover.

“The court instructs the jury that if they find from the evidence that the defendant, on the 21st day of October, 1900, was operating the car mentioned in the evidence for the purpose of carrying passengers for hire from one point to another in the city of St. Louis as a street railway company; and if the jury find from the evidence that on said day the defendant, by its servants in charge of its said car, received the plaintiff as a passenger on its east-bonnd car at or near Clara and Easton, in the city of St. Lonis, to be conveyed as snch passenger to Grand and Easton avenues, in said city; and if the jury further find from the evidence in this case that the defendant’s servants in charge of said car slowed down said car so that its motion was imperceptible, or stopped said car, at said Grand and Easton avenues, to enable the plaintiff to alight therefrom as such passenger whilst said car was slowed down or stopped; and if the jury find from the evidence that whilst said car was so slowed down or stopped at her said point of destination the plaintiff started to alight from said car'as such passenger, and that whilst she was doing so and before she had a reasonable time or opportunity to so alight, defendants’ servants in charge of said car caused or suffered said car to move forward with increased motion, and that thereby the plaintiff was thrown upon the street and injured; and if the jury find from the evidence that defendants’ servants in charge of said ear could, by the exercise of a high degree of care and skill, such as would have been exercised by careful and skillful railway employees under the same or similar circumstances, have prevented such motion of said car at said time and neglected to do so; and if the jury find from the evidence that the plaintiff was exercising ordinary care for her own protection at the time of the injuries, then the plaintiff is entitled to recover.

“If the jury find for the plaintiff, they should assess her damages at such a sum as they believe from the evidence will be a fair compensation to her: 1st, for any pain of body which she has suffered or will hereafter suffer by reason of her injuries and directly caused thereby; 2d, for any loss of earnings of her labor which she has sustained or will hereafter sustain by reason of her injuries and directly caused thereby; 3d, for any expenses necessarily incurred by her for medical attention and nursing which the plaintiff has sustained by reason of said injuries and directly caused thereby.

“If your verdict is for the defendant you will simply so state in your verdict.”

Thereupon the court, at the request of the defendant, gave to the jury the following instructions:

“The court instructs the jury that if they find from the evidence that the plaintiff alighted from the defendant’s car while the same was in motion, and that a woman of ordinary prudence would not have so alighted therefrom under such circumstances, and that but for such attempt on her part the plaintiff would not have been thrown down and injured, even though they also find that said ear started forward with increased motion while she was so alighting and that the defendant was negligent in allowing it to do so, provided said action was not willful on the part of defendant’s agents in charge of its car, then the plaintiff is not entitled to recover and your verdict must be for the defendant.

“If the jury find from the evidence that both the plaintiff and defendant were guilty of some act of negligence as set out in these instructions which directly contributed to cause the plaintiff’s injuries, and that the negligence of neither without the negligence of the other would have caused the plaintiff’s fall and injuries, then the plaintiff is not entitled to recover, and your verdict must be for the defendant. ’ ’

To the action of the court in giving said instructions and each of them the plaintiff at the time excepted.

Thereupon the court of its motion gave the following instructions to the jury:

“The burden of proving the facts set out in these instructions as necessary to be proved in order to enable plaintiff to recover is upon the plaintiff; that is, the preponderance or greater weight of the testimony must be or tbe side of tbe plaintiff; and unless sbe bas so proven them sbe is not entitled to recover.

“The burden of proving any negligence in the plaintiff is upon the defendant.

“The court instructs the jury that the ordinance of the city of St. Louis read in the evidence was in force on the 21st day of October, 1900. And if the jury find from the evidence that the plaintiff did alight from the car on which she was a passenger at her point of destination in the city of St. Louis while the car was moving slowly, and further find from the evidence that defendant’s servant and conductor in charge of the car on which she was a passenger, saw her preparing to alight from said car while in motion, and also saw her while she was proceeding to alight whilst said car" was in motion and permitted her to do so without remonstrance or warning or any effort to prevent her doing so, then such'conduct of said conductor was negligence, and if it directly contributed to cause plaintiff’s injuries by 'being thrown upon the street by the motion of said car if she was so injured, and if the plaintiff was exercising ordinary care at the time of the injury for her own protection, then plaintiff is entitled to recover.

‘ ‘ Under this ordinance a conductor is required to use ordinary care in watching out for women who are about to alight from cars and thereupon to prevent them from leaving a moving car. When they have thus exercised ordinary care the provisions of the ordinance have been fulfilled.” .

To which ruling of the court in giving each of said instructions on its own motion, plaintiff at the time excepted.

The jury returned a verdict for the defendant. In due time the plaintiff filed a motion for a new trial, assigning as ground therefor-, inter alia,, the action of the court in limiting the arguments as aforesaid. The court overruled the motion, and in so doing rendered an opinion, which the abstract of the record states to be as follows:

“In regard to the 5th, 6th, and 7th grounds for the motion for a new trial, it may be said that after the evidence was heard, which consumed in the hearing not over three or four hours, I thought fifteen minutes for each side was a fair allowance of time, and so stated to counsel. The matter was fresh in the minds of the jury, and the issues were not complicated. Upon consultation with the counsel, I understood that fifteen minutes was deemed by them too short, but that twenty minutes on each side would be satisfactory. Acting upon this understanding, I made the allowance of twenty minutes for each side. I must have misunderstood the counsel for plaintiff, as he excepted to the allowance of twenty minutes. Thereupon, I made the original allowance of fifteen minutes for each side, as in my judgment a fair allowance of time for argument. This allowance, of course, did not include the time required to read the instructions to the jury. Eule No. 29 of the circuit court of this circuit is, in my judgment, a fair rule tending to prevent (what too often occurred), plaintiff’s counsel from making his opening argument a mere perfunctory recital, without either touching the issues of the case, or acquainting defendant with the line of his argument, reserving until his closing statement, when there was no opportunity for answer, every substantial argument in the case. ’ ’

The plaintiff assigns two errors: first, error in the instruction as to the burden of proof, and, second, error in limiting the time for argument to fifteen minutes on a side. The whole of this court is of the opinion that the first assignment of error is untenable and that the instruction complained of correctly states the law applicable to facts such as are disclosed by this record. The second error assigned is therefore the only matter left for discussion.

I.

The plaintiff contends that the trial judge abused his judicial discretion, in allowing only fifteen minutes on a side for argument.

In support of this contention the plaintiff cites five cases: White v. People, 90 Ill. 117; Dille v. State, 34 Ohio St. 617; Hunt v. State, 49 Ga. 255; State v. Page, 21 Mo. 257; and State v. Baker, 136 Mo. l. c. 83.

White v. People, 90 Ill. 117, was a prosecution for larceny. Nine witnesses were examined. They were allowed only five minutes to argue the case to the jury. This was held to be reversible error.

In Dille v. State, 34 Ohio St. 617, the charge was burglary and larceny. Eleven witnesses were examined. Half a day was consumed in taking the testimony, the evidence was circumstantial and conflicting and the defendant was represented by two counsel. The court allowed the defendant thirty minutes for argument, and this was held to-be reversible error.

In Hunt v. State, 49 Ga. 255, the charge was assault, with intent to murder. The report of the case does not show how many witnesses were examined, nor how long a time was consumed in adducing the testimony, nor in fact any particulars as to the case or the trial. The court allowed defendant’s attorney thirty minutes for argument, and then allowed him to run ten minutes over that time. His counsel protested that ‘£ he could not do justice to his client’s case within the limited time prescribed by the court. ’ ’ It was held that in view of the Constitution of that State, giving every person charged with an offense the benefit of counsel, the trial court erred in limiting the time for argument.

In speaking of this case, the note to Yeldell v. State, 46 Am. St. Repts. l. c. 28, says: £ £ This ruling is, however, directly opposed to all other authority examined on this topic.” Later, however, it was held in Georgia that the power of the court is limited to preventing idle repetition. ["Williams v. State, 60 Ga. 367.] But since then a rule limiting the time has been adopted in that State. [2 Ency. Pl. and Pr., 703, note 3.]

In State v. Page, 21 Mo. 257, the charge was trespassing on school lands. “After the case was closed on both sides, the court stated that the defendant’s counsel could only address the jury for thirty minutes, and afterwards stated that the defendant’s counsel could only address the jury for fifteen minutes. ’ ’ The defendant’s counsel objected and saved an exception, and upon the defendant being found guilty, and fined $160, which the court reduced to $100, he appealed to this court, and assigned as the principal error the action of the court in limiting the time for argument. This court affirmed the judgment of the trial court, and the opinion by Ryland, J., is so apposite to the case at bar, that the following extensive excerpt is taken therefrom. The learned judge said:

“Can the circuit court limit the time in which a defendant’s counsel shall address a jury in a criminal ease? By the 13th article, section 9, of the State Constitution, it is declared that, ‘In all criminal prosecutions, the accused has the right to be heard by himself' and his counsel.’ Now, in the nature of things, there must be some discretion left with the courts who have criminal jurisdiction, in this matter. How long has the accused and his counsel a right to consume the time of the court in their exercise of this right ? There must be a limit to it as to duration. The right to be heard exists ; it can not be taken away; nor can the court deny this right, as was done in "Ward’s case, in Virginia, reported in 3 Leigh. But there is also an inherent right in courts of justice to control and restrain the acts of parties and counsel and officers while engaged in the administration of justice before them. The courts must take care not to abuse these rights on the one side nor on the other. There are cases in which the time necessary to a proper and fair elucidation of the matters involved in the prosecution, must be greater than in others. The courts must not, then, arbitrarily cut down the time in all cases to a certain limit. They must exercise proper discretion in such matters, granting longer or shorter time, as the intricacy, mass of matter, nature of offense, and the means or circumstances on which the defense may rest, may seem to require. This court will not countenance any act of the lower courts which may seem to owe its origin to mere caprice or arbitrary power, or wanton oppression. Nor, on the other hand, will we lend a willing ear to support the complaints of obstinate and willful or capricious opposition to the orders of the courts, made for advancement and completion of the business before them.

“The-record before us shows first the allowance of thirty minutes, then the reduction of this to fifteen minutes. We can not say that this is an abuse of the discretionary power of the court. There may be a reason for this. The improper waste of the time of the court, or the urgent pressure of important business on the docket, or the improper opposition and behavior of the counsel — unnecessary, troublesome and vexatious — all may have their operation, or the plain and obvious statement of the facts of the case in evidence may not have required longer time, in the opinion of the court, for the defense, than fifteen minutes. At all events, we will not presume the court below did wrong; and we can not say that it did not allow the defendant to be heard by his counsel.

“This matter of limiting the time to be occupied, in the prosecution of causes before courts of justice, is of very ancient origin. It is found among the Greeks, and was carried thence to Rome. The Greeks had their instruments by which they measured time in the halls of judicature. The clepsydra was used. It was an instrument by which they measured time by means of the flowing of water through it, and so frequent and common was the practice of limiting the time to the speakers by water flowing through these instruments, that the word water was used metaphorically for time. When a speaker was allowed to speak so long, they said he was allowed so much water. The Greeks had an officer in their courts of justice, whose duty it was to watch this measuring of time, and when a certain amount was allotted to a speaker, if there were any documents to be read during his speech, the time the reading of such documents consumed was not to be estimated as any part of what had been allotted to him- therefore, this officer, whose station was near the clepsydra, stopped the water while the documents were being read. The orator did not waste his water in reading documents.

“Pliny tells us he was allowed ten large amphorae of water once, and so important was the cause in which he was engaged, that the judges added four more to the amount. He says he spoke five hours. He tells us, likewise, that he himself used to allow the accused as much water as he wanted.

“The tribune of the people, Titus Sabienus, only allowed half an hour to Cicero to speak in defense of Cains Rabirius, when he was prosecuted for murder. This too, on an appeal from the judgment of the Duumviri to the people. The orator complained of being cramped by the narrow space of time: ‘for, though it would be nearly enough to make the defense for his client, it would not be enough for preferring the complaints he had a right to bring forward.’ ‘I have spoken the time allowed me, ’ he said, when about to conclude. And in no part of the monument erected by his genius to its own immortality, will you find a more polished or more intelligent gem than this half hour’s work.

“We conclude, therefore, that a quarter of an hour allowed to a modern orator, in a petty case of cutting down timber on the school lands, can not be considered as an inhibition to be heard in defense of his. client.

The judgment is affirmed,

Judge Leonard concurring.”