117 Mo. App. 302 | Mo. Ct. App. | 1906
The plaintiff’s suit is for damages alleged to have been sustained as the resxxlt of the negligence of the defendant.
The gist of the petition is that, while the plaintiff was in. the act of boarding one of the defendant’s cars as a passenger at Twelfth and Main streets, Kansas City, Missouri, the defendant’s conductor gave the signal for starting and the car suddenly started forward and threw her to the ground injuring her. “That the plaintiff’s position at the time the conductor gave such' signal at the time said car was started was such that the said conductor, knew, or by the exercise of reasonable care could have known, the position and danger of plaintiff, and that the probable result of the giving of said signal and the sudden starting of said car would be to the injury of the plaintiff:” The trial resulted in a judgment for the plaintiff, and the defendant appealed.
The defendant’s principal contention is that the court erred in not directing a verdict for it as asked
The conductor testified that he rang the bell,' hut that it was the emergency bell and was not rung until after plaintiff fell. He denies seeing plaintiff before the car started while she was attempting to take passage. De
The question raised is that there is no evidence that the conductor gave the signal for starting; therefore the specific allegation that the conductor was guilty of negligence in starting the car was not proven and plaintiff failed to prove her- case as alleged. It having been shown that the usual signal for starting was given, the presumption of law is that it was given. The court takes cognizance that the movements of street cars are directed solely by the conductor. And when it is shown that a signal for the starting of a car is given, the presumption is that it was given by the conductor, and the presumption is conclusive until it is overthrown by evidence to the contrary. It is true that the conductor and other witnesses, who support him, testified that the signal given was not for the starting of the car, but that it was an emergency signal and not given until after plaintiff fell to the ground.
And there was evidence going to show that the conductor by the exercise of reasonable diligence might have discovered plaintiff’s situation while she was attempting to get upon the car before he gave the signal for it to start. Both plaintiff and her escort testified that they were at the car while other persons were getting on and that the plaintiff waited for the others to get on, and that when she attempted to get on, the car
Objections are made to the action of the court in admitting incompetent evidence. The witness Huber was ashed, “Was that the gong (the gripman uses a gong) you heard or was it some bell you heard to start the car?” This was objected to as calling for a conclusion and then this question was propounded: “Are you familiar with the sound of the gong the gripman uses distinguished from the sound of the bell the conductor uses to give the signals for starting and stopping cars?” Answer, “Very definitely.” He then stated that it was the bell to start the car he heard ring. It is true the statement of the witness is a conclusion, but it is a statement of fact notwithstanding. There can be no statement of any fact without it involves to some extent a conclusion. It would be impossible for a witness to state the fact in any other manner. The differences in sound are recognized by the organ of hearing, and if the witness knows when a bell and not a gong is sounded, he may state which. He would not be required to imitate the sound for the enlightenment of the jury. Other objections to the admission of evidence are even of less importance.
Objection is made to instruction numbered 1 given for plaintiff, because it wholly fails to limit the jury to the issues tendered by the pleadings, thereby leaving to the jury to determine for themselves what the issues
For the error noted, the cause is reversed and remanded.