(after stating the facts). — The error assigned on account of the overruling of the demurrer of the Union Light & Power Company to the petition, as containing a misjoinder of causes of action, would demand serious attention if the ruling was reviewable. The acts of negligence charged against the several appellants were entirely distinct and each charge affected only one appellant, thereby raising a separate issue and demanding independent proof. Without passing on this assignment, which is not properly before us, we will cite some decisions which shed light on it. Trowbridge v. Forepaugh, 14 Minn. 133; Kelly v. Newman, 62 How. Prac. 156; Wilson v. Castro, 31 Calif. 420; Pomeroy, Code Remedies, sec. 376. The Light & Power Company answered and, moreover, failed to call the court’s attention to the ruling on the demurrer in its motion for new trial.
Both appellants insist that verdicts in their favor should have been directed, and we will therefore treat the main propositions brought forward on the.appeal before noticing some minor assignments. To begin with, it is asserted that the respondent was palpably guilty of negligence which contributed to her injury, and if this proposition is maintainable it will exonerate both appellants. It is founded on the alleged fact that the ditch into which the respondent fell was visible to her for a block or two while she was on the car and when she stepped off. The embankment of dirt which ran along the edge of the ditch was unquestionably in sight and the respondent must have observed it if she ■ was not preoccupied. She said she was engaged in conversation with her daughter and took no notice of the ditch or the bank. Besides, we are not prepared to say that seeing the embankment would have notified her the ditch was between the embankment and the
It is said by the Transit Company that it had nothing to do with the presence of the ditch in the street and as the car stopped at the crossing, the usual stopping place, it neglected no duty. The testimony is not all one way that the car stopped at the crossing. Some witnesses said it ran south a way. This is rather an immaterial question; for if the car had been stopped exactly at the crossing, its rear would have stood at the crossing and its front, from which the respondent alighted, farther south. In that event, she would not have stepped on the bridge which had been left above the excavation by tunnelling under the crossing. The important inquiry in this connection is as to whether the evidence tended to convict the Transit Company of á lack of due care in stopping the car for passengers to alight at. a place where there was a deep ditch which
The additional proposition is urged in behalf of the Transit Company, that when Mrs. MacDonald fell into the ditch she had ceased to be a passenger and entitled to a high degree of care from the company’s servants, as she had already stepped off the car and was standing on the street. We recognize the rule of law that after a passenger leaves a car and has a safe footing on the street, the company’s duty to him is no longer one of high, but only of ordinary care. But this presupposes that the passenger has obtained a safe footing on the street; that is to say, has alighted in safety.
The Light & Power Company seeks to exculpate itself from blame on the ground that the uncontradicted evidence shows it was impossible to fence or guard the excavation on account of its proximity to the car tracks; that there was no room for a fence, because street cars projected beyond the car rails far enough to strike .any fence or guardrail that could be put up. A city ordinance was put in evidence, which required every person who dug a trench in a public street to cause the excavation to be inclosed with a substantial fence, not less than three feet high, to prevent persons and vehicles from falling into the excavation. There is not a line of testimony in the case that street cars projected to the edge of the ditch in question or overhung it. On the contrary,, all the evidence is that they did not extend that far from the rails; and it is palpable that a barrier of some kind could have been provided easily, without interfering with the movement of street cars.The ordinance was disregarded and the negligence of the Light & Power Company is unquestionable. The argument of its counsel is that the testimony showed the usual mode of constructing barriers along
Turning now to the instructions, we find that the first one given for the respondent failed to present clearly the issues. It left out of consideration the duty of the carmen to give respondent any warning in alighting where she did, which was certainly a matter for the jury’s consideration. That was unjust to the respondent. But the instruction told the jury that if they found the place where the respondent was permitted to leave the car was dangerous by reason of the excavation being close to the side of the car, and that the servants in charge of the car, by the exercise of a high degree of care and watchfulness in the management and control of the car, could have prevented respondent from falling into the ditch, the Transit Company was liable. That charge left out of consideration absolutely, as we have said, the failure to warn the respondent and omitted to present the only other acts of negligence charged in the petition, to-wit: stopping the car at a dangerous place and inviting the respondent to get off there. It did not make the right of recovery depend either on the danger of the locality when the car stopped, or on an invitation, express or implied, for the respondent to get off; but on a finding that the
The respondent while suffering from her injury was nursed by her daughter, at that time a member of the household. Respondent promised to pay her for this attention but no price was fixed. Instead of proving the reasonable value of the services of the daughter, who was not shown to be an expert nurse, respondent was allowed to prove, over the objection of the appellants, that the price of the services, in St. Louis, of a trained nurse was six dollars for twenty-four hours. This testimony had no value whatever as proof of the worth of the daughter’s services and tended unjustly to increase the damages awarded by the jury. It would have been as relevant to prove the value of the services of a physician. The inquiry was not as to the current price for professional nurses, but the reasonable value of nursing by a person of ordinary and untrained skill. The respondent was laid up for a long time and this testimony may have been very prejudicial. The exception to it was properly preserved in the motion for new trial and the amount of the verdict was charged to be excessive.