MacDonald v. St. Louis Transit Co.

GOODE, J. (after stating the facts). — The error assigned on account of the overruling of the demurrer of the Union Light & Power Company to the petition, as containing a misjoinder of causes of action, would demand serious attention if the ruling was reviewable. The acts of negligence charged against the several appellants were entirely distinct and each charge affected only one appellant, thereby raising a separate issue and demanding independent proof. Without passing on this assignment, which is not properly before us, we will cite some decisions which shed light on it. Trowbridge v. Forepaugh, 14 Minn. 133; Kelly v. Newman, 62 How. Prac. 156; Wilson v. Castro, 31 Calif. 420; Pomeroy, Code Remedies, sec. 376. The Light & Power Company answered and, moreover, failed to call the court’s attention to the ruling on the demurrer in its motion for new trial. Both appellants insist that verdicts in their favor should have been directed, and we will therefore treat the main propositions brought forward on the.appeal before noticing some minor assignments. To begin with, it is asserted that the respondent was palpably guilty of negligence which contributed to her injury, and if this proposition is maintainable it will exonerate both appellants. It is founded on the alleged fact that the ditch into which the respondent fell was visible to her for a block or two while she was on the car and when she stepped off. The embankment of dirt which ran along the edge of the ditch was unquestionably in sight and the respondent must have observed it if she ■ was not preoccupied. She said she was engaged in conversation with her daughter and took no notice of the ditch or the bank. Besides, we are not prepared to say that seeing the embankment would have notified her the ditch was between the embankment and the — 382 — car so that she was in danger of stepping into the ditch when she got off. It conld as. well have been between the embankment and the sidewalk. But ordinarily its location would have been apparent; and we would be inclined to hold she saw it, but for the positive testimony of some of the witnesses that a heavy rain had fallen during the afternoon and filled the ditch with water to the surface of the street, flooding the street itself and blotting out the outlines of the ditch. Respondent herself swore to those facts 'and her testimony was confirmed by other witnesses. She was a heavy woman and in descending from the car found it necessary to hold to a stanchion or handbar at the side of the car and to step down with her.face toward the car instead of from it. Considering the situation, carelessness cannot be imputed to her for adopting this mode of descent. If the testimony we have mentioned is to be believed, she would have seen nothing to warn her that it was dangerous to step from the footboard to the street, if she had been looking at the street. The issue of her contributory negligence was properly referred to the jury. It is said by the Transit Company that it had nothing to do with the presence of the ditch in the street and as the car stopped at the crossing, the usual stopping place, it neglected no duty. The testimony is not all one way that the car stopped at the crossing. Some witnesses said it ran south a way. This is rather an immaterial question; for if the car had been stopped exactly at the crossing, its rear would have stood at the crossing and its front, from which the respondent alighted, farther south. In that event, she would not have stepped on the bridge which had been left above the excavation by tunnelling under the crossing. The important inquiry in this connection is as to whether the evidence tended to convict the Transit Company of á lack of due care in stopping the car for passengers to alight at. a place where there was a deep ditch which — 383 — was overflowed so as to be invisible. If the ditch was entirely covered with water and indistinguishable from the flooded surface of the street, the situation is analogous to what it would have been if the accident had occurred in the dark instead of daylight. It is a fair inference that the carmen intended for the passengers to get off south of the crossing,- as the car was constructed so that they might leave it along its entire length and no warning was given against their doing so. It is the custom for passengers to get off that type of •cars at the end of the seat they have been occupying. In view of the high degree of care which carriers of passengers must exercise to set them down safely, the jury might find -it was negligent to stop the car for passengers to alight at such a place. The question has been decided that way in apposite eases. Ft. Wayne Traction Company v. Morvilius, 68 N. E. (Ind.) 304; Wolfe v. Railroad, 67 App. Div. 605. A very similar accident was involved in both those*cases, and the railroad companies were held responsible. In Traction Co. v. Morvilius, the injured party stepped into a ditch parallel' with the track when it was dark and the ditch was invisible. The allegation of negligence was that the Traction Company knew of the ditch, or could have known of it, and that its servants in charge of the car. allowed Morvilius to alight without warning him of the danger. The ruling was that the carmen should have taken reasonable precautions to prevent him from falling, or have given him warning. On the trial of the present case the learned circuit judge instructed the jury that the failure of the car crew to warn Mrs. MacDonald of the danger of falling into the ditch was no evidence of negligence on the part of the Transit Company. That act was charged as negligence in the petition and this ruling was erroneous. The general rule is that in exceptional circumstances, when a danger can not be observed by a passenger who is about to get off a car, the operatives in charge of the car must — 384 — warn Mm of the danger if they are aware it exists, instead of permitting him to blindly encounter it. Nellis, Street Railways, p. 155; West Chicago Ry. Co. v. Kennedy, 64 Ill. App. 539, 165 Ill. 496. We think it was the duty, of the conductor or motorman, if he knew of the ditch, to warn or otherwise guard Mrs. MacDonald. In Wolf v. Railroad, supra, the company had had a trench excavated parallel with its tracks, leaving a bridge at the intersection of the streets, but without fencing or guarding the trench at the point where the accident happened. The plaintiff, in attempting to descend from the car near a street crossing,' fell into the trench. The conductor of the car neither warned nor protected her when she was stepping off. On these facts it was ruled that the jury were justified in finding the railroad company was in fault, .either in stopping the car opposite the open trench, or in inviting plaintiff to alight without notice or warning, or in not properly guarding the trend. The first and second grounds of liability are applicable to the Transit Company in the present case. It was not under obligation to fence the trench, but was under an obligation to use high care to protect plaintiff in setting her down; and it was for the jury to say whether that degree of care was observed in permitting her to alight without notifying her of the danger of falling into the ditch or taldng any precaution to prevent such a mishap. The additional proposition is urged in behalf of the Transit Company, that when Mrs. MacDonald fell into the ditch she had ceased to be a passenger and entitled to a high degree of care from the company’s servants, as she had already stepped off the car and was standing on the street. We recognize the rule of law that after a passenger leaves a car and has a safe footing on the street, the company’s duty to him is no longer one of high, but only of ordinary care. But this presupposes that the passenger has obtained a safe footing on the street; that is to say, has alighted in safety. — 385 — Nellis, Street Railways, p. 46. Mrs. MacDonald was injured in the very act of alighting, or so instantaneously after she touched the street that the fall must he regarded as an incident of her descent from the car. It is true she had put her feet on the surface of the ground; but while she stood there, before she had taken a step and while she was still holding to the car, the soil crumbled under her feet and let her into the ditch. We regard the fall as in legal effect the same as if she had stepped directly from the footboard into the ditch. We hold that as she never got a secure footing nor was set down at a place where she could maintain herself, the relation of passenger and carrier was still intact and the liability of the Transit Company is to be tested by the degree of high care. The Light & Power Company seeks to exculpate itself from blame on the ground that the uncontradicted evidence shows it was impossible to fence or guard the excavation on account of its proximity to the car tracks; that there was no room for a fence, because street cars projected beyond the car rails far enough to strike .any fence or guardrail that could be put up. A city ordinance was put in evidence, which required every person who dug a trench in a public street to cause the excavation to be inclosed with a substantial fence, not less than three feet high, to prevent persons and vehicles from falling into the excavation. There is not a line of testimony in the case that street cars projected to the edge of the ditch in question or overhung it. On the contrary,, all the evidence is that they did not extend that far from the rails; and it is palpable that a barrier of some kind could have been provided easily, without interfering with the movement of street cars.The ordinance was disregarded and the negligence of the Light & Power Company is unquestionable. The argument of its counsel is that the testimony showed the usual mode of constructing barriers along — 386 — trenches and streets was to pile np stones to the height of three feet and extend planks from one pile to another, which conld not be done in the present instance. We are far from sure that that mode of guarding the trench was impracticable; but if it was, some other should have been adopted. A rope ought to have been stretched, or a wire, or something to prevent persons from falling into the ditch. It was gross negligence' to leave it in the condition it was. The testimony shows other persons besides Mrs. MacDonald fell into the ditch at the same place that afternoon. Wolf v. Railroad, supra, is authority against the Light & Power Company on this proposition. A more elaborate one, in which many decisions are reviewed, is Deming v. Railroad, 169 N. Y. 1. Turning now to the instructions, we find that the first one given for the respondent failed to present clearly the issues. It left out of consideration the duty of the carmen to give respondent any warning in alighting where she did, which was certainly a matter for the jury’s consideration. That was unjust to the respondent. But the instruction told the jury that if they found the place where the respondent was permitted to leave the car was dangerous by reason of the excavation being close to the side of the car, and that the servants in charge of the car, by the exercise of a high degree of care and watchfulness in the management and control of the car, could have prevented respondent from falling into the ditch, the Transit Company was liable. That charge left out of consideration absolutely, as we have said, the failure to warn the respondent and omitted to present the only other acts of negligence charged in the petition, to-wit: stopping the car at a dangerous place and inviting the respondent to get off there. It did not make the right of recovery depend either on the danger of the locality when the car stopped, or on an invitation, express or implied, for the respondent to get off; but on a finding that the — 387 — carmen, by high care and watchfulness in the management of the car, could have prevented the respondent from falling into the ditch. The instruction lost sight of the acts of negligence specified in the petition and authorized a recovery on a finding by the jury of a vague lack of care in managing and controlling the car. Only in a general and indefinite sense can it be said the management of the car had anything to do with the áecident. The car was not moved while respondent was alighting. It was in impliedly inviting respondent to get off at a bad place and neither warning her of danger nor otherwise looking after her safety, that the Transit Company’s employees were remiss, if they were at all. The instruction should have distinctly predicated as grounds of recovery against the Transit Company, the three acts of negligence of which it was accused. The respondent while suffering from her injury was nursed by her daughter, at that time a member of the household. Respondent promised to pay her for this attention but no price was fixed. Instead of proving the reasonable value of the services of the daughter, who was not shown to be an expert nurse, respondent was allowed to prove, over the objection of the appellants, that the price of the services, in St. Louis, of a trained nurse was six dollars for twenty-four hours. This testimony had no value whatever as proof of the worth of the daughter’s services and tended unjustly to increase the damages awarded by the jury. It would have been as relevant to prove the value of the services of a physician. The inquiry was not as to the current price for professional nurses, but the reasonable value of nursing by a person of ordinary and untrained skill. The respondent was laid up for a long time and this testimony may have been very prejudicial. The exception to it was properly preserved in the motion for new trial and the amount of the verdict was charged to be excessive. — 388 — • The judgment is reversed and the cause remanded. All concur. •