80 Mo. 220 | Mo. | 1883
Suit for damages for personal injury by being thrown from a car by negligent and careless starting of the train before plaintiff' could get off'. That the train stopped too short a time for plaintiff to get off safely. That as soon as the train stopped plaintiff', with all due diligence, proceeded to get off', but before she could reach the platform the train suddenly started, whereby plaintiff' was violently thrown upon the platform, by reason of which carelessness, etc., plaintiff was “ greatly wounded, bruised, huid and made sick, as well as greatly frightened and terrified, and continues to suffer great pain and distress by reason of the wounds and bruises so received.” The answer was a general denial after admitting the incorporation of the defendant. There was a verdict and judgment for the plaintiff'for $1,000, and the defendant appeals to this court.
The plaintiff asked three instructions, as follows :
1. If the jury believe from the evidence that the plaintiff was a passenger on defendant's cars, and that said
2. If the defendant’s agents and employes stopped the train at a station, and plaintiff started to get off, then it was negligence in defendant to start said train before she got clear of the cars, upon the depot platform.
3. In assessing the damages, the jury are not restricted to the mere pecuniary loss. They should take into consideration the age and situation of the plaintiff, her bodily suffering and mental anguish resulting' from the injury received, the extent and permanency of her injury, and the extent to which she is disabled to make a support for herself and family, but in no case should the damage exceed $5,000.
The court then, on its own motion, gave instructions four and five, to-wit:
4. If the jury believe from the evidence the plaintiff attempted to get off the train while it was in motion, then she was guilty of such negligence as to preclude her recovery in this action, no matter whether the train stopped at all, or only for a moment.
5. But if the jury believe from the evidence the train came to a full stop, and that while the plaintiff was in the act of getting off, without notice or warning, it started up before giving her reasonable time to get off, and injured her, then the jury should find a verdict for plaintiff.
The defendant offered no ovidence, and when plaintiff rested asked the court to instruct the jury that, “ admitting all the evidence offered by the plaintiff to be true, the verdict must be for the defendant.”
I. The appellant insists that the judgment'must be
II. The first instruction given for the plaintiff is not objectionable. It fairly submitted to the jury the questions they were to consider. The fourth given on motion of the court is broader against the plaintiff than is warranted by the law. If the train did not stop at all, or make a halt, an attempt of a passenger to get off would, perhaps, constitute such negligence as would preclude a recovery. But if it stopped only for a moment, and was moving so slightly, as to be almost imperceptible, then it would be for the jury to say whether it was such negligence as would preclude a recovery. Straus v. K.C., St. J. & C. B. R. R. Co., 75 Mo. 185, and authorities there cited; Swigert v. Hann. & St. J. R. R. Co., 75 Mo. 475. The fifth instruction given on motion of th e court is rather ambiguous. It ought to show more clearly that plaintiff proceeded to get off when the train stopped, and that reasonable time, under all the circumstances, was
The second instruction given for the plaintiff is fatally defective. ~We understand the rule to be that “ if the train was stopped a sufficient length of time for the plaintiff to conveniently alight, and without fault of defendant’s servants she failed to, do so, and the conductor, not knowing and having no reason to suspect that plaintiff was in the act of alighting/ caused the train to start while she was so alighting, then the defendant would not be liable.” Straus v. Kansas City, St. J. & C. B. R. R. Co., supra. The second instruction ignores these conditions altogether, but announces the broad doctrine that if the train stopped and plaintiff undertook to get off, it was negligence to start the train before she got off. This is not the law. This instruction must be qualified.
The judgment is reversed and the cause remanded for the error of giving the second instruction.