129 Mo. App. 721 | Mo. Ct. App. | 1908
Plaintiff was a passenger on an electric street car operated by defendant on its Holmes street line in Kansas City and was injured while attempting to alight from the car at Twenty-ninth and Holmes streets, a regular stopping place. She alleges in her petition that her injury was the result of the negligent failure of defendant to hold the car stationary a sufficient time for her to accomplish her departure in safety. She recovered a verdict and judgment in the sum of fifteen hundred dollars and defendant appealed.
The negligence charged in the petition is “that the car stopped for plaintiff to alight, and while this plaintiff in the exercise of proper care and caution was in the act of alighting from the rear platform of said car to the ground, said defendant negligently and carelessly started said car in motion and threw this plaintiff with great force and violence to the ground; that as said car moved past plaintiff while plaintiff was in the. act of falling, and when the car had been* so negligently and carelessly set in motion by defendant, the iron shod
It is argued by defendant with much earnestness that the court should have peremptorily directed a verdict in its favor on the ground that plaintiff failed to adduce substantial evidence tending to show negligence on the part of defendant in the respects. alleged. It is conceded in effect that plaintiff’s own testimony does tend to support her allegations, but it is urged that since it is uncorroborated by any other witness and is contradicted by the testimony of seven witnesses introduced by defendant, five of whom appear to be wholly disinterested, it should be rejected as unworthy of belief under the principles followed by this court in Empey v. Cable Co., 45 Mo. App. 422, and recently in Lanick v. Railway, 118 Mo. App. 611. The injury occurred at about eight o’clock in the evening of November 17, 1903. Plaintiff was the only passenger on the car. She testified in part: “I got on the car at Twenty-third and Holmes streets and told the conductor I wanted to get off at Twenty-ninth. I asked him the time; I says, ‘About what time is it,’ and he says, ‘Just a few minutes of eight.’ I says, ‘Then I will be home by eight.’ When the car got to Twenty-ninth and Holmes streets
It is conceded that the end of a transverse beam, or bumper set on a level with the platform at the rear of the car projected several inches beyond the line of the car and served to enclose the steps at the side oppo
The conductor introduced as a witness by defendant testified that plaintiff was the only passenger on the car; that she boarded it at Twenty-third street and shortly before it reached Twenty-ninth signified her intention to leave it at that place; that he thereupon gave the signal, and in obedience thereto, the speed of the car was reduced to make the necessary stop; that plaintiff left her seat while the car was in motion, came back to the rear vestibule where the conductor was standing, stepped down on the steps and then attempted to step to the street while the car was still in motion hut running very slowly; that she fell free of the car, face doAvnward, and was not struck by the bumper and that the car came to a full stop after it had run perhaps five or six feet. This version of the occurrence is supported by the testimony of the other witnesses for defendant one of whom was the motorman, the others, persons who lived nearby or happened to be passing along the street. Several of the witnesses say that after the conductor had carried plaintiff into the car, he
Other facts appear in the record, but they are of minor importance and need not be repeated here. The disinterestedness of some of defendant’s apparently disinterested witnesses is attacked by plaintiff, but in disposing of the questions now under consideration, we shall assume that five of the witnesses had no interest in the case and, therefore, no motive for purposely distorting or misrepresenting the actual facts.
We do not feel justified in saying, as a matter of law, that plaintiff has failed to produce substantial evidence of the existence of the negligence charged. Our duty is not to weigh conflicting evidence of substance, but to ascertain whether that adduced by plaintiff carries enough weight to raise a debatable issue in the minds of reasonable men. The duty of weighing evidence and of passing on the credibility of witnesses is vested by law in the triers of fact alone and it is only in cases where the evidence supporting the verdict is so lacking in value, either because it fails to measure to the standard of the rules of evidence, or is opposed by evidence of such overwhelming strength and verity that i fc is too weak to raise an issue, that the appellate court, as a matter of law, should brush it aside and treat the judgment as the product of passion or prejudice and not of a fair and impartial effort on the part of the judge and jury to discharge their duties. Plaintiff’s testimony is not wholly unsupported. The admitted physical facts and circumstances surrounding the injury very
Some of the instructions given by the court at the instance of plaintiff are made the subject of criticism, but we find they fairly present the issues and do not enlarge the scope of the cause of action pleaded. In obeying the instructions, the jury could not have found for plaintiff without finding that the car was stopped to permit her to depart from it and that defendant’s servants, knowing she was in the act of alighting, prematurely started the car.. On the other hand, the jury were told that plaintiff could not recover if she attempted to alight before the car came to a stop and thus the issues raised by the pleadings and evidence fairly were presented without enlargement.
The instruction given at the request of plaintiff in
The judgment is affirmed.