142 Mo. App. 718 | Mo. Ct. App. | 1909
This appeal comes here from an order granting plaintiff a new trial after a verdict against her. The order said the new trial was allowed “on the ground that the court had erred ... in admitting
The court refused two instructions requested by plaintiff of the following import: If the jury found from the evidence plaintiff signalled defendant’s servants to stop on the west side or crossing of Twelfth street and Washington avenue for the purpose of allowing her to alight, and in response to said signal they did so, and while plaintiff was in the act of alighting, etc., the servants caused the car to start forward before she had a reasonable time to get off, and thereby threw her to the street and injured her, and the servants in charge of the car knew, or by the exercise of ordinary care could or would have known before starting, and in time to have averted the injury to plaintiff, that plaintiff Avas attempting to alight therefrom, and if she was exercising ordinary care at the time, she was entitled to recover. The second of the refused instructions was like the one just epitomized, except that it omitted to require the jury to find the crew* in charge of the car knew, or by ordinary care could or would have known before starting and in time to have averted the injury to plaintiff, that she was attempting to alight. This instruction, of which complaint is made,
This appeal was argued on the assumption that the petition averred plaintiff signalled for the car to be stopped at the west side of the intersection of Twelfth street and Washington, “a regular stopping place for the discharge of passengers, and by reason of the signal .the car was stopped at said place.” On looking at the petition we find it does not aver the signal was given for a stop on the west side, or that said side was the regular stopping place; but only avers plaintiff signalled the servants operating the car to stop at the intersection of Twelfth streets and Washington avenue, “a regular stopping place for the discharge of passengers,” and the car was stopped there. That averment did not commit plaintiff to the theory that the west side of Twelfth street was the regular stopping place for the discharge of east-bound passengers, and did not require her to prove it was. In this respect the petition was like the one in Cobb v. Railroad, 149 Mo. 135. Therefore the refusal of the two instructions requested by her and the giving of the one requested by defendant of which complaint is made, cannot be justified on the ground the latter submitted the only case stated in the petition, and the former one not stated. But plaintiff testified the cars always stopped on the west side and she always got off there; and this circumstance, in connection with the fact that one of the instructions given at her request required the jury to find she sig
The order for new trial is affirmed and the cause remanded.