Brock v. St. Louis Transit Co. , 107 Mo. App. 109 ( 1904 )

BLAND, P. J.

(after stating the facts.) — 1. At the close of plaintiff’s evidence defendant offered a demurrer to the evidence which the court denied. Plaintiff then introduced evidence in support of its defense, and again at the- close of all the evidence moved for an instruction of nonsuit. The refusal of the court to grant either of these requests is assigned as error. By offering evidence in its own behalf after its demurrer to plaintiff’s evidence has been overruled, defendant waived its demurrer, Mirrielees v. Railway, 163 Mo. 486, and cases cited. Its demurrer to the whole of the evidence, however, was not waived by asking other instructions on the theory of the case adopted by the opposing counsel and the court, and it is the duty of this court to review the case on all the evidence to see for itself if there was substantial evidence in support of the verdict. Bowen v. Railway, 95 Mo. 268; McPherson v. Railway, 97 Mo. 253; Weber v. Railway, 100 Mo. 194; Hilz v. Railway, 101 Mo. 36; Jennings v. Railway, 112 Mo. 268; Kerr v. Cusenbary, 60 Mo. App. 558; Flinn v. Bldg. Assn., 93 Mo. App. 444. In the light of plaintiff’s evidence, that he knew the cars on the Clayton line sometimes made a trip to Clayton after midnight for extra pay, and that he hailed the car and went on it after it stopped for the purpose of negotiating with the car men for an extra trip, he was not a trespasser or intruder upon the car. He was there for a lawful purpose, on an implied invitation of the company’s servants in charge of the car, to contract with them for an extra trip to Clayton, and these servants were bound to use ordinary care and diligence for his safety while on the car. Welch v. McAllister, 15 Mo. App. 492; Eisenberg v. Railway, 33 Mo. App. 90; Bunnell v. Stern, 122 N. Y. 544; Carelton v. Iron & Steel Company, 99 Mass. 216; , Gordon v. Cummings, 152 Mass. 513; 2 Shearman & Redfield on Negligence, sec. 719a. And if it was dangerous to start the car with plaintiff standing on the rear platform, it was their duty to give him warning of their intention to start and a reasonable time to get into the car or get off before making the start. The care required of the company’s servants, in the circumstances detailed in evidence, was only ordinary care, hence the mere fact that plaintiff was injured is not evidence that they were negligent. The plaintiff’s evidence shows that the motorman, on his own initiative, started the car out of the curve at a high rate of speed. There is no evidence that the motorman knew that the plaintiff was on the car. If then, he had no reason to suspect persons might he getting on or off the car, or standing on the rear platform at the time, and if his trip was at an end and there was nothing for him to do but to make the loop and turn in his car, and he was in the habit of doing this without a signal from the conductor, we would be inclined to doubt if there was sufficient evidence of negligence to send the case to the jury. But the evidence of the motorman is that he was given a signal to start. It is to be presumed that the signal was given by the conductor, who, as the evidence shows, was standing near the plaintiff engaged in conversation with him, and must from his experience have known whether or not it would endanger plaintiff’s safety to start the car out of the curve and if it was dangerous to plaintiff, considering his position on the platform, there is no escaping the conclusion that the conductor was aware of the danger and was guilty of negligence in giving the signal to the motorman to go ahead without first warning the plaintiff of the danger and of his intention to send the car ahead. On the other hand, if he did not give the signal it was negligent in the motorman to start the ear on his own motion when, as the evidence tends to show, he had good reason to suspect persons might be on the platform or getting on or off the car and it was his duty, in the circumstances, to have either waited for a signal from the conductor or have ascertained for himself that to start the car would not endanger any one and, we think, according to all the evidence, there was a lack of the exercise of ordinary care at one or the other ends of the car, either by the conductor at the rear end or by the motorman at the front end. We think too, the evidence was sufficient to show that it was dangerous to one situated on the back platform as was plaintiff, to start the car rapidly out of the curve, and conclude that on the whole evidence the case was one for the jury.

2. It is contended that the following instruction given for plaintiff is erroneous for the reason there is no evidence that the motorman was under the direction of the conductor-.

“3. If you believe from the evidence, that the plaintiff was standing upon the rear platform of defendant’s car, for the purpose of requesting passage thereon from the conductor while the same was stopped and standing at Forsyth Junction; that said car was in charge of and being operated by its motorman and conductor, and that in operating the same, the motorman had control of the power which caused its motion, and so controlled the stopping, starting and speed of the car, and said motorman was under the direction of the conductor, and was required to stop and start said car upon signals from the conductor by means of a bell to be rung by the conductor; that either of them, the said donductor or motorman, knew, or by the exercise, of ordinary care would have known, that plaintiff was so standing upon said platform, and failed to exercise ordinary care for the safety of the plaintiff in the starting of said car, and that such failure caused the said car to be started suddenly and without notice or warning to plaintiff, at the rapid rate of speed, upon a curve in the track and thereby caused the plaintiff to be thrown from the said platform of the car and injure,^, as the result of such failure in the exercise of ordinary care; then you should find that such failure constituted negligence.”

It might be pertinent to inquire, in view of this obj ection, if the motorman was not under the direction of the conductor, how the car could be run orderly and with safety to passengers? It is a matter of common knowledge that motorman stop and start street cars in response to signals given by the conductors and that such cars could not be operated with any degree of safety in any other manner.

3. The defendant complains of the refusal of the following instruction asked by it:

“8. If the jury believe from the evidence that the car upon which plaintiff entered at the time he received his alleged injuries, if any, had at that time got to the terminus of the road upon which said car run, and to the end of its run, and that said car was then to be taken without carrying any more passengers to the car sheds and put up there for the time being, then the motorman of said car had a right to assume that there was no person on said car except the conductor and himself, and to act upon such assumption; and under such circumstances it was not negligence on the part of said motorman to run said car at a rapid speed around any curve upon the route to said car sheds, unless said motorman at that time actually knew that plaintiff was on the back platform of said car; and if the jury find from all the evidence that said motorman did not at that time know that plaintiff was on the back platform of said car, then the verdict must be for defendant.”

The trouble with this instruction is that is assumes the existence of facts which are contradicted by the evidence referred to in the first paragraph of this opinion.

4. The defendant asked the following other instruction which the court refused to give:

“9. If the jury believe from the evidence, that plaintiff when he boarded the back platform of defendant’s car, knew that said car had arrived at the end of its trip, and that it was not the intention of the defendant’s employees in charge of the car to go back or make a return trip, and that thereupon plaintiff got onto the hack platform of said car to request and to try to induce the conductor of said car to make a return trip, then plaintiff assumed whatever danger might he incident to being on said back platform under such circumstances ;

“And if the jury believe that under such circumstances and while plaintiff was on said back platform that the motorman of said car was on the front platform of said car, and did not know that plaintiff was on the back platform thereof, and that said motorman without knowing that plaintiff was on said back platform started said car and ran it rapidly around a curve in defendant’s railroad, for the purpose of taking said car to the car sheds, and that by reason of said rapid rate of speed and said curve plaintiff was thrown from the car and injured as alleged, then such injury was caused by plaintiff having voluntarily assumed whatever dangers were incident to his position on said back platform under such circumstances and the verdict must be for the defendant.”

This instruction leaves out of view the evidence of the motorman that he was given a signal to go ahead.

Defendant’s eighth refused instruction is opposed to our view of the law as expressed in the first and fourth paragraphs of this opinion and for this reason we think it was erroneous. We think the case is a close one. The evidence tending to establish negligence on the part of the defendant is not strong or convincing but when considered as a whole it tends to show that the servants of the company in charge of the car were negligent in the management of it and negligently exposed plaintiff to a danger which they could, by the exercise of ordinary care, have avoided, and we conclude that the case was properly submitted to the jury and affirm the judgment.

Reyburn and Goode, JJ., concur.