Ashbrook v. Frederick Avenue Railway Co. , 1885 Mo. App. LEXIS 334 ( 1885 )

Opinion by

Philips, P. J.

1. The plaintiff ’ s cause of action is certainly such as to require a court to “ stretch the legal tether to its utmost tension” to uphold. It is of • such questionable merit as would well have warranted the trial court in awarding a venire de novo. It would require the extremes! indulgence of liberality in favor of the province of the jury as triers of the facts, to say there was any evidence to support this verdict. It is questionable, in the first place, whether the plaintiff has not stated one ground of negligence in his petition, and recovered on another. The impression one would naturally receive from reading the averments of the petition is, that plaintiff’s misfortune resulted from the misconduct of the driver in whipping up his team at such a rate of speed as not to have allowed the passenger time to get inside of the car before the collision, combined with the fact that other passengers were on the platform who had not time to enter the car, who obstructed the ingress of the plaintiff, thereby compelling him to remain on the step of the car until the collision occurred. Whereas the case made was that there -was no unusual abruptness in start-' ihg the team, and no rapid speed, nor was there but one person on the platform, and he was not detained from entering the car, but was leisurely standing on the platform leaning back, so his feet were only in the way of plaintiff stepping upon the platform. But conceding that the allegations were sufficient to warrant the evidence, it is difficult to reconcile the conduct of the plaintiff with that degree of care and ordinary prudence which the laAv exacts of him before he can put the defendant in default.

There were only three people in the car. There was ample room for the plaintiff on the inside, where"a passenger should go. There was nothing to prevent his entering at the rear of the car, but he voluntarily, without necessity, went upon the front step of the car, seeing at the time, as he must be presumed to have seen, if he was using Ms eyes at all, that the driver and another person were on the platform. It does not appear that he made any effort, after reaching the step, to get upon the platform. “It is the duty of the passenger, on getting on board of a car, to place himself in a safe position therein, if he is able to obtain such position, and it is no excuse for him, to place himself in an unsafe one, that the persons in charge know he is unsafe, and do not drive him therefrom, when the unsafety is known to the passenger. That riding upon the steps of a street car is less safe than a seat inside, requires no proof; it is obviously so.” Clark v. Eighth Avenue R. R. Co., 36 N. Y. 137-8, and cases cited. That the plaintiff had ample time, after reaching the step, to have gone inside of the car before the collision occurred, is plainly shown by the facts disclosed by his own evidence. He states that after he got on the step the driver had time to drop his lines and turn round and enter the car, and the car went a distance of twenty-five feet before he was struck. One step would have taken him on to the platform, where he would have been out of the danger that caused his injury. Three steps would have placed him inside of the door of the car. His only excuse for the delay is, that the passenger standing on the platform prevented his entering thereon.

There are some facts so much within the range of common sense and experience as to admit of no proof, either to affirm or contradict them. This is one of them. Leaning back, as the passenger was, on a platform from two to three feet across, it required no effort to step over his feet. Plaintiff thinks he asked the person to let him in; but of this he is not certain. It does not appear that he even essayed an effort. He never once looked to the front, although he was in a position of exposure. And instead of exercising the least degree of care or thought of himself, the truth is admitted by him that he discovered his wife inside of the car and was engaged in bowing to her. This may have been commendable gallantry, and an admirable performance for a husband, but the law will not place such a premium on the street performance as to require the defendant to pay $1,000 for the exhibition. The common law rests not on the code of chivalry. It is based on common right and the mutual obligations of man to man in the social compact. The plaintiff, although he was standing on the lower step, did not even take the precaution to keep his body erect.. He stated that the “step of that car lies about thirteen inches within the outside line of the car.” So if he had not been bowing and throwing his body back he would not have been hurt. There was no collision between the car and the wagon, for the car' was untouched ; showing, beyond the possibility of a cavil, that if he had not unnecessarily swung his body beyond the sides of the car he would have been unhurt. The conclusion, it does seem to us, is unavoidable that plaintiff voluntarily chose to stop where he did, and, in total forgetfulness of his situation, was paying his respects to his wife instead of passing on into the car.

I have been unable to find any adjudicated case, on like facts, where any court has upheld a verdict for damages. In Clark v. Eighth Avenue R. R. Co., supra, the facts which exonerated the passenger were that the car was full, and that the platform was full, “so that no more persons could stand thereon; that in this situation the car was stopped for him to get on; that upon his getting on there was no place for him, except standing on the steps; that while riding in this situation, the conductor called upon him for, and received from him, his fare.”

The case of Huelsenkamp v. Citizen's Ry. Co. (37 Mo. 237), is as strong a case as we have found in favor of plaintiff. But the controlling facts there were, that the car was full on the inside, and the platform was full, so that the plaintiff could not ride elsewhere than on the step. Had that car been comparatively empty, with only one person standing on the platform when the injury occurred, it is quite apparent the court would have directed a nonsuit.

Nor is there any parallel between this case and that of Burns v. Beliefontaine Ry. Co., of St. Louis (50 Mo. 139). The only negligence imputed to the conduct of the plaintiff there was the simple fact that he was standing on the platform with the driver, and with the driver’s approbation. The court held that this fact did not constitute negligence in law. In the case at bar, it does not appear that the driver was even aware that plaintiff had stopped on the lower step. If he saw the plaintiff at all, there is nothing to indicate that the driver should suplióse the passenger would stop on that lower step, and have his attention wholly occupied with salutations to his wife on the inside of the car.

We would not be understood as holding that where-there is a choice of positions upon a street car, either of which a passenger may lawfully take, that he is obliged to select that which is the least dangerous ; nor that negligence is necessarily imputable to a passenger for going aboard in front of instead of the rear of the car. But we do maintain that when he voluntarily selects the more dangerous position, his situation should quicken his apprehension of danger, and correspondingly stimulate his-vigilance. And if, after thus unnecessarily stopping on the step of the car in front, he carelessly swings his body beyond the side of the car, without once looking forward for any approaching object on a thoroughfare of a city, by reason of which his body collides with a passing vehicle, which does not strike the car, he is guilty of contributory negligence which should prevent him from demanding damages of the railway company.

Admitting all that is claimed under this evidence. was the driver guilty of such negligence as ought to shift the responsibility for this accident from plaintiff to defendant? Wagner, J., in the Huelsenkamp case, supra, summarizes the law on this subject as follows: “That the company shall be guilty of some negligence which mediately or immediately produced or enhanced the injury, and that passengers should not have been guilty of any carelessness and imprudence which directly contributed to the injury, since no one can recover for an injury of which his own negligence was in whole or in part the proximate cause ; and although the plaintiff’s misconduct was the immediate cause of it, may have contributed remotely to the injury, if the defendant’s conduct was the immediate cause of it, and with the exercise of prudence he might have prevented it, he is-not excused. * * * Where there has been mutual negligence, and the negligence of each party was the proximate cause of the injury, no action whatever can be sustained by either, for the reason that, as there can be no apportionment of damages, there can be no recovery.”

So Sherman and Eedfield (Neg. sects. 25, 34) say: “One who is injured by the mere negligence of another can not recover at law or in equity, any compensation for his injury, if he, by his own, or his agent’s, ordinary negligence or wilful wrong, proximately contributes to produce the injury of which he complains, so that, but for his concurring and co-operating fault, the injury would not have happened to him, except where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him. * * * It is not essential to this defence that the plaintiff should have been, in any degree, the cause of the act by which he was injured. It is enough to defeat him, if the injury might have been avoided by his exercise of ordinary care. The question to be determined in every case is, not whether the plaintiff’s negligence caused, but whether it contributed to the injury of which he complains. Neither is it necessary that the plaintiff’s negligence should have contributed to the injury in any greater degree than the negligence of the defendant.”

The imputation of negligence against the defendant rests solely on the act of the driver in turning from his brake to make change for the fare of plaintiff ’ s wife. He was then in the line of duty. While the law exacted of him a high degree of care and vigilance in managing the car, it still is that degree of care which a prudent person, under like circumstances, should exercise, proportioned to the danger to be avoided by his vigilance, “judged by the standard of common prudence and experience.”

No danger was apparent when the driver left his brake for the moment. Had he seen the wagon approaching, it would have been most reasonable to suppose that, as the car had the right of way, the wagon would keep clear of its path, as it was not then on it, the driver of the wagon being in full view of the car. It can not, therefore, be maintained that he was guilty of any negligence in turning for the moment from his brake. And as persuasive proof that there was nothing in the movement of the wagon, prior to the instant of the collision, to excite the least apprehension on the part of the driver, the passenger standing on the front of the car gave no alarm.

It devolved on the plaintiff to establish, by reasonable evidence, that the defendant, under such circumstances, discovered the danger in time to have averted it, or that he might have so discovered it by the exercise of reasonable care. The evidence shows that at the instant of the alarm the driver sprang to his post, but it was unavailing. Had he been at the brake and stopped the car it would not have stopped the course of the wagon. And it would, furthermore, be wholly unreasonable to hold that the driver should have anticipated that the teamster would run so close to his car, and especially to hold that the driver should so manage his car, as although a passing team does not touch it, he should anticipate that a passenger would be coquetting with his wife, and his body, from this “curtsying, ” be thrown clear of the car. No driver can be held to an anticipation of such concurring causes outside of any act of his.

Averse as we are to interfering with the verdicts of juries on questions of fact, yet the courts have a solemn duty to perform, to see that the citizen’s property is not taken from him without evidence and against the law. The plaintiff’s misfortune may touch onr sympathies, but “the rule which denies relief to a plaintiff guilty of contributory negligence, is based less upon considerations of what is just to the defendant, than upon grounds of public policy, which requires, in the interest of the whole community, that every one should take such care of himself as can reasonably be expected of him.” Sherman & Kedfield on Negligence, sect. 42.

The court should have sustained the demurrer to the evidence. The judgment of the circuit court is reversed.

All concur.