McMiens v. United Railways Co.

ROY, O.

Plaintiff sued for damages for personal injuries. The verdict and judgment were for defendant, and plaintiff has appealed.

The accident occurred at the intersection of Manchester and Tamm Avenues in St. Louis. Defendant has double tracks at that point, the south track being the east-bound. South of that track is a passenger platform, with its east end about the west line of Tamm Avenue. The .latter street is not opened south of that point, except by a pathway leading across a footbridge over the river Des Peres to residence territory beyond. That path strikes the defendant’s track just east of the platform, the exact distance not being shown. As it turns west to the platform it passes alongside the defendant’s track in close proximity thereto. To what extent that path from the south is used by people passing across Manchester Avenue is not shown. From five hundred to a thousand passengers use that platform in a day.

The plaintiff, in company with two grand-daughters, who were about twelve years old, came from the south along that path, and seeing defendant’s car approaching from the west, hurried to , catch it. One of the children rushed upon the platform. Plaintiff was just turning west toward the platform when the car hit her, she evidently having got a little farther north than was safe. So far as we can ascertain from the evidence the path to the platform ran between a telephone pole and the track, there having been about thirty inches between the pole and the side of the car. It does not appear that there were any other persons waiting there for the car at that time.

Mr. Fish, a son-in-law of plaintiff, testified that he had previously waited there for the. car about a dozen times, and had frequently traveled on that line, and that, about four months after the accident, he staid there *330 and watched seven or eight cars pass, and that it was their custom to stop with the front end of the car west of the end of the platform.

The plaintiff testified that for two years she had taken the car at that place every two or three weeks, and that she had never noticed the car come down where, it came that morning, that they usually stopped the car hack hy the platform. She further testified:

“Q. Now, as you approached this stopping place at Tamm and Manchester Avenues, state whether or not you came along this traveled way across the Frisco and the Missouri Pacific tracks that has been mentioned? A. Yes, sir; I came over the bridge and along that path.

“Q. Now, as you neared the platform, did you see a street car coming from the west? A. Yes, sir; I seen a street car coming; I was hurrying'to get it.

“Q. Now, just state what occurred from the time you noted the car coming until you were injured, in your own way? A,. Well, my one little granddaughter ran on and this other one was with me and I was hurrying on, and I went on up this path, and when I got ready to turn, just as I went to turn, the car hit me and that is about the last that I knew of it.

“Q. Now, state whether or not you anticipated or expected the car to run down beyond the end of the platform? A- No sir.

“By the Court: Were there any other persons there to get on the car at that time? A. I think there were, but I don’t know; I know my little granddaughter was up- on the platform.

“By the Court: At the usual stopping place? A. She had run pn ahead of us, the one.

“By the Court : She was at the usual stopping place to get on the ear; is that it? A. Yes, sir.”

The defendant asked an instruction in the nature of a demurrer, which was refused.

I. There was no sufficient proof of a custom of defendant to stop its cars without projecting the front end *331 beyond the platform. The plaintiff had never noticed ^ie cars come as far as they did that morning. Certainly not; she had no occasion to notice. Mr. Fish, the only other witness, evidently had never noticed where the cars stopped, for he states that, after the injury, he stood there and watched seven or eight cars, none of which projected beyond the platform.

Custom

Give all the testimony for plaintiff full credit, and it still falls far short of what is necessary to prove a custom of the defendant to so stop its cars.

In Pankey v. Railway Co., 180 Mo. App. 185 , l. c. 199, the court said:

“To make a custom effective it must be shown to have been general, uniform, certain and notorious, known to the parties or so general and universal in its character that knowledge must be presumed. [Shields v. Railway, 87 Mo. App. 637 ; Boyd v. Graham, 5 Mo. App. 403 ; Sweet v. Leach, 6 Ill. App. 212 ; C. M. & St. P. Ry. Co. v. Lindeman, 143 Fed. 946 .]”

„ . Doctrine.

II. Even if it was the defendant’s custom, in stopping for passengers at that point, to so stop its cars, the evidence in this case tends to show that plaintiff and the children were hurrying to get on the platform. There is no showing that there were other persons on the platform,. The car, so far as the evidence goes, was not intending to stop there until the child rushed on the platform. The car was probably stopped at the earliest moment after those in charge of it found that it was necessary to- stop there.

There is no room in this case for the humanitarian doctrine. The car was going east, plaintiff was hurrying north and just turning west to the platform. There was no reason to anticipate that she would get too close to the track. [Keele v. Railroad, 258 Mo. l. c. 74.]

The judgment is affirmed.

PER CURIAM: — The foregoing opinion of Rot, C., is adopted as the opinion of the court.

All of the judges concur.