122 Mo. App. 330 | Mo. Ct. App. | 1907
The petition in this case alleges that on June 28, 1903, plaintiff was received as a passenger on one of defendant’s electric cars to be carried from Meramec Highlands in^ St. Louis county, to her destination, another part of said county; that defendant,- unmindful of its duty, so negligently maintained the car on which plaintiff was a passenger that its floor at the point where there was an opening with a cover, was rotten, worn, loose and insecure and unfit for the use defendant was putting it to, and that the floor, by reason of its insecure state, gave way and plaintiff was caused to fall into a hole or opening in the car and sustain serious permanent injuries; that she suffered great physical and mental pain and had been forced to incur and in the future would be forced to incur, large ex
The contention that defendant was entitled to an order for a verdict is rested on the postulate that the accident itself was no evidence of negligence on the part
As to the allegations about the floor; though the petition says it was rotten, it also says it was worn, loose and unfit for use; not confining the defects alleged to rottenness.' Not only the accident to plaintiff, but positive testimony, shows the floor was loose and unfit for use. It would be a fair finding that she struck her foot against a door because it was loose and projected above the level of the rest of the floor, and one witness swore to seeing the door tilt under plaintiff’s weight. An employee of defendant testified that this car was out of use for several months and was disabled, but had been reconstructed. - The rabbet on which the door rested was half an inch wide and it was a physical impossibility for the door to have gone down unless the rabbet was worn away, tore loose or the door was too small. The evidence goes to show the rabbet did not burst anywhere around the opening.
A further point is made against the petition in comparison with the evidence, because the petition avers the floor of the car was unfit for use; whereas the proof
Complaint is made of the refusal of the court to grant an instruction requested by the defendant to this effect: That if the jury believed from the evidence that the car was inspected on the day it was sent out for business, and was found in a safe condition in respect of the cover, then the allegation regarding the negligence of defendant in maintaining the cover was not sustained by evidence and the verdict should be for the defendant. It would have been error to give that charge. It said nothing about the character of the inspection, but simply stated that if the car was inspected and found to be in good condition, plaintiff could not recover. Such a charge would make any inspection, however superficial, conclusive against defendant’s liability. It looks like an inspection which left the inspector satisfied that the cover was in good order, must have been careless; for it is nearly or quite certain that it was not in good order.
Complaint is preferred because the court refused to instruct that there was no evidence that defendant negligently maintained, upheld, kept, preserved or supported an opening with a cover in the floor of the car, and no evidence to show defendant negligently upheld, kept, preserved or supported a rotten, worn, loose, insecure and unfit cover in the floor of the car and, therefore, the verdict should be for the defendant. Suffice to say there was abundant evidence, not only that defendant maintained and kept the door in question, but that it was kept loose and in a state unfit for use.
Instructions were asked telling the jury there was
We have found no error in the record and the judgment will be affirmed.