112 Mo. App. 350 | Mo. Ct. App. | 1905
(after stating the facts).
Another salutary rule of practice, applicable here, is that parties are bound by the theory which they adopt on the trial of the case, and when they treat an issue as properly before the court, an objection, that such issue was not within the allegations of the petition, is waived. [Thorp v. Railway, 89 Mo. 650, 2 S. W. 3; Hilz v. Rail
From these facts in evidence, we think it clearly appears that it was the duty of the motorman to exercise due care to see that all passengers disembarking were safely on the street before he started his car, and that
We think from what is stated in the petition in respect to the negligence of the motorman and other facts, the inference is fairly deducible that the' motorman knew, or by the exercise of due care could have known, that plaintiff was leaving the car when he turned the power on to move the car forward. We also think that plaintiff’s evidence made ont a prima facie case and that, notwithstanding the seeming preponderance of the evidence as a whole was on the side of the defendant, the case was one for the jury and that defendant’s instruction that plaintiff could not recover was properly denied.'
“First. . It entirely ignores every constituent element upon which liability of a carrier of passengers is predicated.
“Second. No issue of knowledge on part of defendant’s servant is submitted.
“Third. No issue as to whether car stopped a reasonable time is submitted.
“Fourth. The very issue of the case is assumed and the jury virtually told that the mere fact of an accident justified a verdict for plaintiff. Nor was this feature cured by instruction numbered 4.
“Fifth. It was not the duty of the defendant to use the greatest care to see that she was safely alighted, unless defendant knew or had reasonable grounds to believe she intended and was attempting to alight.
*362 “Nor was it the duty of the defendant’s motorman to observe her conduct just because the car was standing still and just because she was approaching the rear of the car or about to get off, unless he did in fact observe her action or knew she was about to get off, etc. This knowledge, the basic fact of liability, is entirely omitted in the instruction.
“So it is not the law, that if he started the car while she was in the act of alighting the defendant is responsible. This declaration also ignores entirely the question of knowledge of the motorman.” ■
The instruction declared it to have been the absolute duty of the motorman to observe the plaintiff, to have seen her approaching the rear of the car and to have kept his eye on her until she was safely on the street before starting his car, notwithstanding the fact that he testified he had no knowledge of her intention to get off, and notwithstanding her negligence in failing to give him warning of her intention to get off.
In Yarnell v. Railway, 113 Mo. l. c. 587, Judge Sherwood, speaking of the duty of those in charge of a train of cars conveying passengers, owe to a passenger in getting off or on the cars, said: “The authorities are virtually unanimous in holding that unless knowledge of such a purpose is communicated to the company’s servants, that no duty arises to hold the train for a reasonable time in order that such purpose may be accomplished.
“In such cases the duty is dependent upon the knowledge of the carrier, and the negligence upon the non-performance of the ascertained duty; without the presence of these constituent elements, liability, which is but the legitimate result of a known and non-performed legal duty, cannot exist.” In this case an instruction given, which was very much like the one given for plaintiff in the case in hand, was condemned. The facts, however, in this case and the Yarnell case are not at all similar. Yarnell, in company with one Wall and his
It is unquestionably the duty of a passenger on a street car, when he desires to get off at a particular place, to give notice of his intention to the person in charge of the car, in the usual and customary way of giving such notice, and if he fails to do so, he has no ground to charge negligence to the person in charge for failing to anticipate his desire and have the car stopped for him to get off; but it seems to us that where a street car stops at a regular stopping place where passengers are in the habit of getting on and off, and this fact is known to the person in charge of the car, the very act of stopping the car at such a place is an invitation to all on board who wish to get off to do so, and that it is the duty of the person in charge to exercise the same care toward one alighting as though he had given warning of his intention to get off the car at such place. The duty of the person in charge, it seems to us, in such circumstances, is analogous to the duty of the conductor on a steam railroad where his train stops at a regular sta
Judge Thompson, in volume 3, section 3518, of his work on negligence, states the duty as follows: “At the outset it is to be remembered that the person attempting to alight from the carrier’s vehicle is still a passenger until he has accomplished the act of alighting in safety, and that the street car company is a carrier of passengers and owes to the passenger attempting to alight that very high degree of care and attention which the law puts on it generally, to the end of promoting the safety of the passengers.” This paragraph is approvingly quoted by our Supreme Court in O’Brien v. Transit Company, supra.
Whether or not the motorman exercised this high degree of care toward the plaintiff, we think, in the circumstances of the case, was a question of fact for the jury. The instruction given practically took this question from the jury and declared as a matter of law that it was the duty of the motorman to have seen and observed the plaintiff until she reached the street in safety before 'starting the car. It was not his duty, under the circumstances, to especially observe the plaintiff, for she had not communicated to him her intention to get off, but to watch the rear platform where passengers were accustomed to get on and off and see that no one was in the act of getting on or off before starting his car. The .motorman testified that he did look around his car, that he saw no one getting on or off and then sounded his gong and started the car. Whether or not he was negligent in the performance of his duty, we -think should have been submitted to the jury.
There was no conductor on the car to look after passengers, and the failure to provide one is not alleged as a negligent omission of duty on the part of the defend
For error in the instructions given for plaintiff, the judgment is reversed and the cause remanded.