153 Mo. App. 55 | Mo. Ct. App. | 1910
This is a suit for damages accrued to plaintiff on account of the alleged negligence of defendant in operating its street car. Plaintiff recovered and defendant prosecutes the appeal.
It appears plaintiff was a passenger on defendant’s west-bound street car on Olive street in gt. Louis. Having paid the car fare-, the conductor furnished her with a transfer to be used on defendant’s car running north on Jefferson avenue. It appears just before the car on which plaintiff was a passenger reached Jefferson avenue, she signalled the same to be stopped by ringing the electric bell, and; walked to the rear end of the car with the purpose of alighting there. The car failed to stop in compliance with her signal, however, and she told the conductor she desired to go north on Jefferson avenue whereupon he said he would let her off at Beaumont, the next street to the west. Plaintiff says thereupon she assumed her position on the rear platform of the car to the end of stepping off when it should come to a stop at the next corner; that the car slowed down as it came to the corner of Beaumont and Olive streets as though it was going to stop for her to alight and she placed her foot upon the step, holding fast to the hand rail on the rear of the car. Just as she placed her foot upon the step, the car, instead of stopping, jerked sud
It is first argued for defendant that the court should have directed a verdict for it for the reason the evidence fails to show the jerk of the car which precipitated plaintiff to the street was extraordinary or unusual. The evidence in the record' inheres with more force in this respect than defendant concedes; for besides that of plaintiff to the effect the car gave a sudden and unexpected'jerk, a passenger testified that it jerked him backwards against his seat' with a considerable jar. But we are not impressed with the argument advanced for the reason that even an ordinary jerk of the car is sufficient prima facie in the circumstances of the case. It appears the whole matter occurred under the very eye of the conductor who had promised plaintiff the car would be stopped at the corner of Beaumont and Olive streets, only a block away, for her to alight. The point- mentioned is a usual stopping place for street cars and plaintiff was thus invited by the conductor in charge to be present and prepare to alight. Instead of the car stopping, as the conductor agreed, it did no more than slow down, indicating-the stop was being made. Plaintiff had a right to rely upon this invitation and assume her position adjacent to the step, if she exercised ordinary care for her safety by holding fast to the hand rail as the evidence discloses. Having thus induced plaintiff to assume the position she occupied it would seem that the exercise of high care for her safety forbade any acceleration of speed which would tend to suddenly jerk the car and precipitate her into the street. Plaintiff had a right to anticipate the car would stop at the point in question and not be suddenly moved forward without warning after she was invited to assume a position of readiness to alight. The principle of liability is more or less illustrated in the following cases: Jones v. Springfield Traction Co., 137 Mo. App. 408, 118 S. W. 675; Westervelt v. St.
The answer pleaded a release and acquittance of the cause of action relied upon in the petition. It is averred that in consideration of five dollars paid plaintiff she released and acquitted defendant of all claims for damages arising from her injury. Plaintiff’s reply, which was /verified under our statute, requiring as much when the execution of a written instrument is not conceded, denied that she released or acquitted defendant of the claim involved and averred that she had no knowledge whatever touching the release set forth in the answer. It appears in evidence that defendant’s general manager had issued an order upon its treasurer, payable to plaintiff, in the sum of five dollars and there was evidence on the part of defendant that this order was delivered to plaintiff at the time she is said to have executed the release. But the evidence of plaintiff herself on this question goes to the effect that no such order was ever delivered to her and that she had no knowledge whatever of the release in question. Plaintiff’s sister testified for her to the effect that the morning after the injury, defendant’s claim agent called to see plaintiff but was not permitted to do so for the reason her injuries were so severe that an interview could not be allowed; that the claim agent, presented a paper and requested her to- sign it to the end that he might show he had called upon her. This witness said that she refused several times to sign the paper but finally, in order to get rid of the agent, who was persistent, she signed her sister’s (plaintiff’s) name thereto without authority and without knowing the contents of the paper. After the paper was so signed by plaintiff’s sister, the claim agent left with the witness the order on defendant’s treasurer for five dollars. It appears this order was never cashed and if plaintiff’s evidence is to be believed, she had no knowledge of it whatever.
After the suit was instituted, defendant gave notice and took plaintiff’s deposition before a notary public.