Holt v. Southwest Missouri Electric Railway Co.

ELLISON, J.

The plaintiff sued the defendant for personal injuries received while attempting to get aboard one of its electric cars and recovered judgment.

The fourth of July, 1891, was Sunday,' and the usual national holiday was celebrated in Jasper county on the following Monday, the fifth. A large crowd had assembled at Lakeside Park, going there principally over defendant’s electric railway, running between the cities of Carthage and Joplin. In dispersing at about sundown, the crowd was large and somewhat unmanageable at the point where the cars stopped to let off and take on passengers at the park. Every one seemed to be making an effort to get on the car on which this accident happened. In consequence of this, despite the attempt of defendant’s employees, who were on the ground to control the crowd as well as possible, the platform of the front end of the car became crowded with those pushing in. The motorman was at his post between the brakestaff and the “controller” of the electric current. Plaintiff 'was among those trying to get on and while she was in the act of stepping upon the platform of the car, the brake became unfastened, and whirling rapidly around, struck plaintiff on the side of the cheek, inflicting painful and serious injury. The evidence in plaintiff’s behalf does not show what loosened the brake; she denied defendant’s theory that she loosened it by taking hold of it to aid herself *446 in getting up on the platform. The brake was an upright iron staff with a handle at the upper end and when set it was fastened by what was called a “dog” Avhieh would be inserted in ratchets or cogs of a small iron wheel which the staff passed through at the point where it passed through the platform. In setting the brake, the dog was manipulated with the foot of the motorman. The plaintiff’s theory of the accident is that this “dog” was knocked out of the cog or ratchet by the foot of some one in the crowd on the platform. Rut, as just stated, there was no affirmative evidence of this. Though there were several charges of negligence in the petition, all were abandoned save one, viz.: that the motorman should have held the brake handle with his hand, or that he should have protected the “dog” at the bottom with his foot; or, as expressed by counsel in argument, guarded the brake.

The evidence showed that the brake and its appliances were in good order, and were in the same place as all others. _ That the car was managed and that the motorman conducted himself as customarily in receiving and discharging large crowds. It further disclosed that no accident from the brake had ever happened before and that the brake was novel* known to be kicked loose. An attempt ivas made by plaintiff to show by two witnesses that it got loose on one other occasion -while attempting to stop the car, but each stated that the brake was not set with the ratchet and “dog,” but that while the handle was being held by the motorman it slipped out of his hand and whirled around, striking him on the finger.

We have concluded, though not without some difficulty, that the evidence fails to show a liability on part of defendant. We said in Guffey v. Railway, 53 Mo. App. 462 , adopting the rule stated in Mitchell v. Railway, 51 Mich. 238 , “that it was well settled that negligence can not be presumed when nothing is done out of the usual course of business un *447 less the course is improper, and that there must be some special circumstance calling for more particular care and caution to make liability.” We also stated in that case that “when something unusual occurs which injures plaintiff, but such unusual occurrence is not even inferentially the result of an unusual act of the defendant and the defendant has, so far as he is concerned, been pursuing his usual course, which has heretofore been done in safety, then the unusual occurrence is what is called an accident.”

So, also, it was held in Laflin v. Railway, 106 N. Y. 136 , that, “where an appliance, machine ox structure, not, obviously dangerous, has been in daily use for years and has uniformly proved adequate, safe and convenient, it may be continued without the imputation of negligence.”

In Higgins v. Railway, 73 Ga. 149 , it was held to be proper to receive the testimony of a witness, in a position to know, that he had never heard of an accident, before or since, of the nature charged in that case. That a carrier of passengers is not obliged to foresee and provide against casualties which have not been known to occur before, and which may hot reasonably be expected. And that if the carrier has availed himself of the best known and most extensively used safeguards against danger, he has done all the law requires, and his liability is not to be ascertained by what appears for the first time after the disaster, to be a proper precaution against its occurrence. It does not, of course, follow that though holding the brake would have prevented the injury, that a liability was incurred by the motorman’s omitting to so hold it after it was set and fastened. Sikes v. Sheldon, 58 Iowa, 744 .

The general doctrine of these cases was -approved in American Brewing Co. v. Talbot, 141 Mo. 674 . So in Hysell v. Swift, 78 Mo. App. 39 , a case where a servant’s eye was poisoned and put out by bacteria falling from an iron beam being cleaned by the servant, we approved of the *448 following rule: “That which never happened before, and which in its character is such as not to naturally occur to prudent men to guard against its happening at all, can not when in the course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its possible happening and guarding against that remote contingency.”

Applying these rules to this case, we can only conclude that defendant was not culpable in the unfortunate accident for which this action was brought. We will therefore reverse the judgment.

Smith, P. J., concurs; Gill, J., absent.