97 Mo. App. 609 | Mo. Ct. App. | 1903
— The defendant, among other instructions, some of which were given, asked the court to give the following which was refused, viz.:
“The court instructs the jury that if they believe from the evidence that the conductor stopped the ear at Elizabeth street to let Mrs. Kirksey and plaintiff get off said car, and that Mrs. Kirksey got off and before plaintiff could get off some one, not an employee of tne*612 defendant, without the knowledge or authority of the conductor, rung the hell and gave the motorman the signal to start, and in pursuance of said signal the motorman started the car and plaintiff fell off, then there was no negligence on the part of defendant and plaintiff can not recover in this case and their finding will he for defendant. ’ ’
"We can not see upon what theory the court refused said instruction, for if it was true that some person other than the conductor and not in defendant’s employ gave the signal which started the car while plaintiff was attempting to get off, causing her fall and injury, it was not the result of any negligence on the part of defendant but that of a careless or mischievous stranger over whom defendant had no control. Bailey v. Railway, 152 Mo. 449; Sullivan v. Railway, 133 Mo. 1. There must be absence of care and foresight in order to- make ,the carrier liable for an injury to a passenger. Sawyer v. Railway, 37 Mo. 240; Elliott on Railroads, sec. 1639. Railroads are not to be held liable for injuries caused solely by the acts of persons who do not hold to- them any relation of express or implied agency. Patterson’s Railway Acc. Law, p. 38.
The defendant complains of the action of the court' in giving plaintiff’s second instruction, but we think it was proper enough when taken in connection with that of defendant’s numbered seven which should have been given. We see no valid objection to the others given for the plaintiff.
For the error noted the cause is reversed and remanded.
