125 Mo. App. 660 | Mo. Ct. App. | 1907
Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff recovered judgment in the sum of eight hundred dollars and defendant appealed. The injury occurred, in the afternoon of March 26, 1904. Plaintiff was a passenger on an electric car operated by defendant on one of its lines of street railway in Kansas City. The car was running- eastward on Independence avenue and as it approached Charlotte street, a regular stopping place, plaintiff gave the signal
The negligence alleged in the petition is that while plaintiff “was proceeding with due care and diligence to alight from said car, and while she had one foot on the step of said car and her other foot extended to step to the street frota said car step, the trainmen in charge of said ear who were then and there the agents, servants and employees of defendant, carelessly and negligently caused said car to start forward while plaintiff was in the aforesaid dangerous position in stepping from said car step, and before plaintiff had a reasonable time to alight from said car, and plaintiff was thereby thrown from said car step . . . that said trainmen, agents and employees of defendant then and there knew of plaintiff’s dangerous position in stepping, from said car step and of .the lack of reasonable time given her to alight safely frota said car, or by the exercise of reasonable care and diligence in their duties as such trainmen in then and there operating said car, could
At the request of plaintiff, the court instructed the jury, in part, as follows: 1. “The jury are instructed that if you believe and find from the evidence that plaintiff was a passenger on one of defendant’s trolley street cars in charge of, and being operated by defendant’s trainmen, on or about March 26, 1901, that said car at that time was running east on Independence avenue from Grand avenue in Kansas City, Missouri, and that, at the intersection of Charlotte street with said Independence avenue, said car was stopped by defendant’s trainmen in. charge thereof for the purpose of allowing passengers thereon to alight therefrom, and that while said car was then and there stopped for said purpose, plaintiff attempted to alight from said car and that she Avas using reasonable care and diligence in so doing, and that, before she had had a reasonable time to safely alight from said car, and while she had one foot on the cal'" step and her other foot extended to step to the street, and that while defendant’s trainmen, in charge of said car, saw, or by the exercise of that high degree of care and vigilance described to you in instruction number two following, could have seen plaintiff so alighting from said car in time to have held said car stationary until she had safely alighted therefrom, defendant’s said trainmen in charge of said car then and there carelessly and negligently caused said car to suddenly start forward, whereby plaintiff was thrown violently to the street pavement and injured, then your verdict should be for plaintiff.”
2. “The jury are instructed that if you believe from the evidence that plaintiff was a passenger on defendant’s street car in question, and that while such a passenger was injured, while attempting to alight therefrom, and that she was exercising ordinary care
It is argued by defendant that under the facts premised in the last of these instructions, it was error to charge the jury that the burden of proof was on defendant to show that the trainmen “could not have avoided injuring plaintiff by the exercise of the highest practical degree of care that would have been exercised by very prudent persons, skilled as motormen and conductors, and engaged in operating a similar car under like circumstances.” Defendant, as a common carrier, was bound to employ the highest 'degree of care to avoid injury to its passengers, and in the performance of that duty, was required when signalled to stop at a regular stopping place, to bring the car to a complete stop and to hold it stationary until departing passengers, themselves in the exercise of reasonable care, could accomplish their departure in safety. Operators of street cars should not only hold the car stationary a reasonable length of time for passengers to alight, but when that has been done, it is the duty of the conductor, before giving the signal to start to look to the places of exit to ascertain that no passenger is in the act of alighting, and not to give the signal until all have left the car who are attempting to leave it at that place.
The burden was on plaintiff to show that her injury was the direct result of the negligence of which she complains, but when she introduced evidence to
Had this instruction assulmed to cover the whole case and had it directed a verdict on the finding of facts stated in the hypothesis, we would give sanction to the contention of defendant. It is well settled that an instruction of such character is erroneous if it fails to include all of the facts elemental to the cause of action pleaded. [Hamilton v. Railway, 114 Mo. App. 504; Orcutt v. Century Building Co., 201 Mo. 424, 99 S. W. 1062; Waldhier v. Railway, 71 Mo. 514; Ely v. Railway, 77 Mo. 34; Feary v. Railway, 162 Mo. 75.] But the instruction criticised does not assume to cover the case, nor does it direct a verdict. It is to be considered but as a part of the whole charge given to the jury and is to be read in connection with the first instruction which does cover the whole case and which
Objection is made to the inclusion in plaintiff’s instruction on the measure of damages for future consequences reasonably certain to result from the injury. It appears that plaintiff had not entirely recovered frota her injuries at the time of the trial and that she was reasonably certain to suffer from them in the future.
Further complaint is made of the refusal by the court of certain instructions asked by defendant, but we find the substance of them in another asked by defendant which, after being modified by the court, was given, and as modified, correctly declared the law. It was not error to refuse instructions which, in substance, were repetitions of another given for the same party.
The judgment is affirmed.