Action to recover damages for personal injuries. The petition of the plaintiff alleged, that on September 15, 1897, plaintiff -approached the track of defendant at the intersection of Fifth and Ohio streets, in Sedalia, and signaled the car of the defendant, which was approaching from the north; that in response to said signal the motorman in charge of said car, brought the car to a stop; that thereupon plaintiff believing that said car had stopped for him to board the same, took hold of the handrail and then set one foot on 'the step to board said car, but before plaintiff could or had time to step upon said car, the said motorman, negligently and carelessly instantly let off the brake, turned on the power, ■and thereby caused said car instantly and with great force and speed to lurch forward and violently strike plaintiff upon the body, whereby he was thrown down and under said car, etc.
There was a trial resulting in judgment for plaintiff, and from which defendant has appealed.
I. The defendant objects that the court erred in giving the plaintiff’s instructions numbered one and five. Number, one told the jury that if it believed from the evidence that the “plaintiff signaled to the motorman in charge of said car
And the fifth told the jury that, although they believed that plaintiff undertook to get on defendant’s car while in motion, yet if it was moving slowly and at such a rate of speed that a reasonably prudent person in the exercise of ordinary care and prudence could have boarded said car in safety and that the plaintiff in attempting to board said ear exercised such care and prudence, as a reasonably prudent person would have done at the time under the same circumstances, then the fact that the car was still in motion when the plaintiff undertook to board it does not relieve the defendant from liability if the defendant was at the time guilty of negligence in the management and operation of said car, and such negligence was the direct cause of the plaintiff’s injuries.
The plaintiff deposed that: “I waited for the car to come up and gave him the signal with my right hand and the cár came up and practically stopped, and I took hold of the front part of the car, the handle or hand rail on the front part
Some of the witnesses for defendant testified that at the time the plaintiff attempted to board the car it was running at a speed of about three miles an hour-; whilst another testified that its speed was about a mile an hour.
It is thus seen that there is a variance between the allegations of the petition and the instruction. The petition alleges that the defendant had stopped its car to allow plaintiff to enter the same, and that while he was proceeding to do so its motorman negligently turned on the full current of electricity, and thereby caused said car to instantly and with great force and speed lurch forward, whereby plaintiff was thrown down and under said car, etc.
The plaintiff’s two instructions told the jury that if it found that the defendant’s motorman saw the plaintiff’s signal and undertook to stop the car for the purpose of receiving plaintiff as a passenger thereon, and that at the time the car Avas nearly stopped or moving slowly that plaintiff could have entered the same with safety by the exercise of reasonable and ordinary care, and that in the exercise of such care while at
The evidence adduced by the plaintiff tended to support the theory of his instructions. The concurrent testimony of all the witnesses was that the car had not fully stopped at the time the plaintiff attempted to get on board of' it. No objection was taken to this evidence, either by demurrer or otherwise.
The defendant contends that the liability for an injury caused by suddenly starting a car which is standing still is established by proof of certain facts, but that if the injury is caused by suddenly accelerating the speed of a moving car, the liability is established by proof of other and different facts,( and that it therefore inevitably follows that the cause of action alleged in the petition is not that upon which plaintiff was permitted to recover. But suppose this contention be conceded to the defendant: is he entitled to a reversal of the judgment for that reason? It is incontrovertable that the instructions to which objection is made by- defendant are- sufficiently supported by the evidence. Nor is there any complaint that, if the petition alleged the facts hypothesized by them, they would not, in that case, correctly express the law. The allegation of the cause of action to which the proof was directed was not unproved in its entire scope and meaning, and -there was, therefore, not an entire failure of the evidence. The allegation in the petition that the defendant “stopped” the car for the purpose of allowing the plaintiff to get on the same is no more than the allegation of a matter of inducement, and no negligence is alleged in doing that act. The negligence alleged consists in letting off the brake and turning on the full current of electricity while plaintiff was in the act of getting on the car. So that it may be well doubted whether there
Put if there be such a variance, it can not be made available to defendant as a ground of reversal, since it did not take advantage of the supposed variance in the manner pointed out by the statute. No affidavit was filed stating that it had been misled to its prejudice in maintaining its defense upon the merits. R. S. 1889, sec. 2096; Ridenhour v. Railway, 102 Mo. 270; Mellor v. Railway, 105 Mo. 455; Turner v. Railway, 51 Mo. 501; Clements v. Maloney, 55 Mo. 352; Ely v. Porter, 58 Mo. 158; Bank v. Wills, 79 App. 275; Olmstead v. Smith, 87 Mo. 607; Clydesdale v. Bennett, 52 Mo. App. 333.
The defendant cites and greatly relies on the recent case of Chitty v. Railway, 148 Mo. 64. In that case the petition charged that the injury was occasioned by a collision. The plaintiff was given two instructions, one of which authorized a verdict for plaintiff, if the jury found the facts so alleged in the petition; and the other authorized a verdict if it was found that the injury was caused by the plaintiff’s leg being caught between the door and the jamb thereof, while he was attempting to escape from the caboose when he had reasonable cause to apprehend a collision and the danger thereof was then imminent and impending, etc. “The negligence averred was a collision and the proof was that the injury was received while attempting to escape from the caboose to avoid injury from an apprehended and imminent and impending collision which he believed was about to occur. The proof of one such cause of the injury necessarily disproves the existence of the other, and, in this case, the plaintiff elected to stand upon the first cause stated, and his evidence supports that theory, yet after telling the jury in the first instruction to find for the plaintiff if they believed the injury was received from this cause, the court told them, in the second instruction, to find for the plaintiff if they found he was not injured from the specific acts of negligence charged but was injured in
It is thus made quite plain that the case here is quite unlike that, from which we have just quoted. In that case the court by its instructions for plaintiff not only authorized the jury to find for plaintiff, if it found the facts alleged in the petition, but also authorized it to find for plaintiff if it found a different unalleged state of facts, the proof of the existence of which would disprove those alleged in the petition. It therefore must be manifest that the ruling there made can not be invoked as an authority applicable here. "Without specially noticing the other cases cited by the defendant, in connection with that of Chitty v. Railway, it is proper to say that it will be found, on a close examination of each of them, that they have no direct bearing on the point under consideration.
The defendant further complains that the plaintiff’s said first instruction is open to the objection that it declared that it was the duty of defendant to have in charge of its cars careful employees to manage the same. This complaint is, we think, without merit. This instruction declared what it is conceded was the proper measure of duty imposed by law on the defendant while engaged in operating its railway. The jury was thereby further told that if it found the facts existed which were therein specified that then the defendant-had neglected to fill the measure of duty required of it by law and was therefore liable. But if we are wrong in this it is not perceived that the defendant was in any way harmed by the words of the instruction, to which it objects. It is our conclusion therefore that the court did not err in giving plaintiff’s said instructions number one and five. And this, for like reasons, is true 'as to his fourth.
The defendant objects further, that the plaintiff’s third instruction, which declared that, if “at the time the plaintiff
The defendant further objects to the plaintiff’s sixth instruction, which told the jury that they were the sole judges of the credibility of the several witnesses that had appeared before them, and the weight and importance of their respective statements of testimony, and if they believed from all they had seen and heard at the trial of this case that any witnesses had willfully sworn falsely as to any of the facts mentioned in the instructions, then they were at liberty to disregard entirely the testimony of such witness, was erroneous in expression. It told the jury that it was the sole judge of the credibility of the several witnesses who had appeared before it. Plaintiff, it seems, did not appear before it, but his deposition was read by his attorney.
The jury may have very well concluded that since the plaintiff did not personally appear before it that his credibility was not open to question by it. It is disclosed by the evidence that there was a conflict between the testimony of the plaintiff and some of the other witnesses in respect to matters which were material for the jury to consider in determining the issues, and therefore it may be that the direction of this instruction greatly misled the jury to the prejudice of the defendant.
Again, the jury were further told in the same instruction that it was the sole judge of the weight and importance of the statements and testimony of the witnesses. The weight of the testimony is primarily at least a question for the jury to determine, but the materiality is always a question for the
It is objected that the phrase “from all they had seen and heard at the trial of the case” was too broad. Most certainly a jury is not warranted in wholly disregarding the testimony of a witness unless there is that in his appearance, or demeanor while testifying, or some inherent defect in his testimony, or inconsistency with that of other witnesses, or physical facts, which lead it to the conclusion that the witness is untruthful. The instruction in this regard is fairly subject to the defendant’s criticism.
The defendant further objects that these words of said instruction, viz.: “to any facts mentioned in the instructions” are too restrictive. If any witness willfully swore falsely to any material fact, whether mentioned in the instructions or not, that fact was sufficient to authorize the jury to entirely disregard the testimony of such witness. It often occurs that the constitutive facts of a case are established by inference from other facts which are proved. The constitutive facts are referred to in the instructions but those from which all or part of them are inferred are not therein referred to. Now, a witness may have willfully sworn falsely in relation to one or more of the latter facts, and yet, under the instruction, the jury so believing would not be authorized to disregard the testimony of such witness. In the present case the plaintiff
The plaintiff’s instruction relating to the measure of damages is not open to the objection which the defendant suggests. The petition claimed that on account of the negligent acts of defendant, and on account of injury sustained, as well as the permanent nature thereof, and on account of the physical and mental pain and anguish endured, and on account -of moneys expended for surgical attendance and medicines, that plaintiff was damaged in the sum of five thousand dollars. This instruction to-ld the jury that if they found for plaintiff to assess such damages as it believed from the evidence would compensate him for his injuries, including (1), mental and physical pain suffered; and (2), that he will suffer; and (3), permanent injury sustained; -and (4), all damages present and future believed to be the necessary results of the injury, etc. In view of the ruling made in Gordes v. Iron & Foundry Co., 124 Mo. 347, this instruction was sufficient under the allegations of the petition.
The defendant further complains of the action of the court in refusing its fourth instruction, which was to the effect that, if at the time and place mentioned in the plaintiff’s petition the plaintiff signaled the motorman operating the defendant’s car to stop, and while said motorman was in the
We are inclined to the opinion that the court should not have admitted the evidence relating to the construction, etc. of the step of the car, as there was no issue under which the same was admissible. The petition does not count on negligence of that kind.
We shall accordingly reverse the judgment and remand the cause.