Eikenberry v. St. Louis Transit Co.
80 S.W. 360
Mo. Ct. App.
1904
Check Treatment
BLAND, P. J.

(after stating the facts as above.) — 1. The instructions given for the plaintiff find support in the evidence offered by him and as applied to that evidence correctly enunciate the law and are not open to the criticism made by defendant’s counsel in their brief and are not opposed to any of the decisions cited in support of the criticisms. These decisions were rendered on a state of facts materially different from those shown by the plaintiff’s evidence.

2. Instruction No. 8, asked by defendant, was a correct exposition of the law and should have been given without modification, but we can not conceive how defendant was prejudiced by the striking out of the clause, “then such slowing down of the car was not an invitation to plaintiff to attempt to get upon the same. ’ ’ The defense to which the instruction is applicable was that the motorman did not see the plaintiff and had no knowledge of his presence or of his intention to get on the ear and for this reason owed him no duty to stop or slow down the car to enable him to get on it. The instruction as given fairly submitted this defense to the jury. The clause stricken out, though correct as a legal proposition, would have added no strength to the instruction had it remained in it, nor afforded the jury any information necessary to a correct verdict in the case, other than what they gained from the instruction as given.

3. The instruction given by the court of its own motion, in respect to the credibility of witnesses, is cirticised for the reason it authorized the jury in passing on the credibility of the witnesses to take into consideration all they had ‘ ‘ seen and heard at the trial. ’ ’ The contention is that the instruction authorized the jury to take into consideration everything that came within their observation at the trial. In Hansberger v. Railway, 82 Mo. App. l. c. 577, the Kansas City Court of Appeals said of an instruction on the credibility of wit*450nesses containing the same objectionable phrases as the one in hand, that it was open to the criticism made by appellant’s counsel, that it was too broad. The judgment, however, was not reversed on account of the objectionable instruction but for other errors that intervened at the trial. In Kirchner v. Collins, 152 Mo. 394, the Supreme Court passed an instruction containing the identical phrase without condemnation. We agree with the Kansas City Court of Appeals that the instruction is open to criticism and is too broad. . But we do not think the judgment should be reversed on account of this objectionable instruction, for it can not be thought that the jury when it came to pass on the credibility of any of the witnesses in the case felt itself authorized by the .instruction to put aside the oath that had been administered to it, and take into consideration things heard and seen at the trial outside of the evidence and independent of the witnesses. It is more probable, and the presumption is, that the jury remembered their oath and construed the instruction as it should have been construed and felt themselves confined to the evidence and to the demeanor of the witnesses while testifying. We do not think the jury were misled by the instruction and decline to reverse the judgment on account of it.

4. Should the court have given the first instruction asked by defendant! In other words, is it contributory negligence, as a matter of law, for an ordinarily active man, thirty-eight years of age, to attempt to board a street car turning out of a curve at the rate of five or six miles per hour, provided the place where he undertakes to get on is the usual place where the car stops for the purpose of letting passengers on and off, and he is familiar with such place! Five or six miles per hour is the highest estimate of the speed of the car, while it was passing around the curve, by any witness who testified in the case. Four or five miles an hour was the estimate of not only the majority of the defendant’s witnesses, but of those most competent to *451judge of its speed. But defendant was entitled to select the highest estimate of speed made by any of its witnesses and to submit the question of negligence per se on that speed.

In Harvey v. Railroad, 116 Mass. 269, it was held a bar to recovery for a person to get aboard a train at a station after it began to move. The same ruling was made in New York, etc., Railroad v. Enches, 127 Pa. St. 316. In Birmingham Electric Railway Co. v. Clay, 108 Ala. 233, it was held contributory negligence for one with his arms full of bundles to attempt to board an electric car while it was running from four to five miles per hour. Beach on Contributory Negligence, says: “A railroad company is not liable for the consequences of an attempt to get upon a train in motion."(3 Ed., sec. 146).

In Swigert v. Railroad, 75 Mo. 475, it was held: “It is not necessarily negligence to attempt to get on a train which has started from a station. ’ ’

In Fulks v. Railroad, 111 Mo. l. c. 340, it is said: “To attempt to get on or off a train in rapid motion would be an act of gross negligence; but it is generally held that the courts will not, as a matter of law, declare a person guilty of contributory negligence who attempts to get on or off a train while it is moving slowly, especially at a platform. The question of contributory negligence in such cases is one of mixed law and fact, and should be determined by the jury, under the guide of proper instructions, in the light of all the attending circumstances. Such has been the repeated ruling of this and other courts. Doss v. Railroad, 59 Mo. 27; Swigert v. Railroad, 75 Mo. 475; Leslie v. Railroad, 88 Mo. 51; Clotworthy v. Railroad, 80 Mo. 221; Straus v. Railroad, 75 Mo. 185; Weber v. Railroad, 100 Mo. 194; Filer v. Railroad, 49 N. Y. 47; Bucher v. Railroad, 98 N. Y. 128; Johnson v. Railroad, 70 Pa. St. 357.”

In Murphy v. Railway, 43 Mo. App. l. c. 349, this *452court said: “We are not prepared to say, as a matter of law, that the plaintiff was guilty of contributory negligence in attempting to get on the train, if, in point of fact, it was running no faster than a man could walk, and he was invited to do so by the conductor.”

When the rate of speed is so high and the place where the plaintiff attempts to get on or off a moving car is so obviously perilous that a person of ordinary prudence would not make the attempt, the trial court should nonsuit the plaintiff. Weber v. Railroad, 100 Mo. 194. It should be conceded that there is more or less risk in getting on or off a moving car or train of cars, which risk the person making the attempt assumes, and that this risk increases with the increased speed of the car or train of cars. But every risk one voluntarily takes in his movements from place to place is not negligence per se and does not become so unless the peril is so obvious that a person of ordinary prudence would not assume it. The best considered cases have refused to lay down a rule as to what particular speed would be sufficient notice to one, if he attempted to get on or off a moving car, that he would be guilty of contributory negligence. Cicero & Proviso Street Railway Co. v. Meixner, 31 L. R. A. (160 Ill. 320) 331; Brown v. Seattle City R. R. Co., 16 Wash. 465; Morrison v. Railroad, 130 N. Y. 166; Omaha Street Railway Co. v. Craig, 39 Neb. 601; Sahlgaard v. Railway, 48 Minn. 232; Finkeldey v. Omnibus Cable Co., 114 Cal. 28; Ober v. Railroad, 44 La. Ann. 1059; The Citizens’ Street Railroad Co. v. Spahr, 7 Ind. App. 23. But even if it should be conceded that plaintiff was guilty of contributory negligence in trying to get on the moving car, the instruction should not have been given, for the reason that it ignored and left out of view the evidence of plaintiff tending to show that while he was attempting to board the car and had his left foot on the lower step and had hold of the handrail with his right hand, the motorman increased the speed of the car causing plaintiff to lose *453Ms balance. If this increase of speed — as tbe evidence tends to show — and not plaintiff’s prior negligence, caused bim to lose bis balance and fall into tbe street, tbe defendant company is liable. Tbe risk assumed by tbe plaintiff in getting on tbe moving car was only tbe risk of injury from tbe ordinary movements of tbe car in similar circumstances and it was gross negligence in tbe motorman, if be knew or bad good reason to believe, as tbe evidence tends to establish be did, that tbe plaintiff was attempting to board tbe ear, to accelerate its speed, and if bis negligence in so accelerating tbe speed was tbe proximate cause of tbe injury, then it is plain that- tbe plaintiff’s prior negligence would not bar a recovery. Schepers v. Railway Co., 126 Mo. l. c. 676, and eases cited.

Tbe defendant asked tbe following other instruction which tbe court refused:

“If tbe jury find from tbe evidence that tbe plaintiff was thrown from tbe ear by reason of a side or latéral motion of tbe car, caused by tbe car passing out of tbe curve on to tbe straight track, and not by reason of a start forward with a sudden increased speed, causing a shock, then tbe plaintiff can not recover under tbe pleadings in this cause, and tbe verdict of tbe jury must be for tbe defendant. ’ ’

As before stated there was evidence of the side motion of tbe car and of its first tendency to throw one standing on tbe platform in toward tbe car; as it went out of tbe curve to throw bim outwardly from tbe car, Tbe car was moving out of tbe curve when tbe plaintiff attempted to get on it. His evidence is that after be bad one foot on tbe step and bad bold of tbe handrail, tbe car started with a sudden increase of speed and be lost bis balance and after being carried from sixty to seventy-five feet be fell into tbe street; that tbe car was moving about three miles per hour when be attempted to get on it. This evidence, and there is none to contradict it, does not prove or tend to prove that tbe plain*454tiff was thrown from the ear solely by its lateral motion in going out of the curve and the instruction for this, and other reasons herein stated, was rightfully denied.

The other instructions asked by defendant and refused were either covered by instructions given or they misstated the law and were, therefore, correctly refused.

Discovering no reversible error in the record, the judgment is affirmed.

Reyburn, and Goode, JJ., concur.