107 Mo. App. 109 | Mo. Ct. App. | 1904
(after stating the facts.) — 1. At the close of plaintiff’s evidence defendant offered a demurrer to the evidence which the court denied. Plain
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 ob
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
“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.