Maggioli v. St. Louis Transit Co., 108 Mo. App. 416

Maggioli v. St. Louis Transit Co.

108 Mo. App. 416 | Mo. Ct. App. | 1904

REYBURN, J.

— This is an action to recover for personal injuries alleged by the plaintiff to have been *419sustained while attempting to board a car of defendant at the intersection of Fourteenth and Papin streets, in the city of St. Louis, the plaintiff averring that on the twentieth day of April, 1903, he attempted to become a passenger, when without fault on his part, as he was about to step upon the car, after taking hold of the handrail used to assist passengers in alighting’ from and getting upon such car, and before he had time to place his feet firmly upon the steps of the car, the agents and servants of defendant company in charge, willfully and negligently caused the car to be suddenly and violently started, causing plaintiff to be dragged along the street until he was violently thrown to the ground to his serious injury as detailed. The defendant made general denial by way of answer and at the trial objected to the introduction of any evidence under the petition on the ground that it wholly failed to state facts sufficient to constitute any cause of action, which objection was overruled by the court. The trial proceeded and from verdict and judgment for plaintiff, defendant has prosecuted its appeal.

This court has had occasion in a recent case to stamp and condemn as vicious a petition in an action of like character containing averments involving the repugnant and conflicting elements of both carelessness and willfulness in the act complained of as the basis of suit, as negligence and wantonness could not coexist. Boyd v. Transit Co., 108 Mo. 303, 83 S. W. 287. But as the objection now pressed appears not to have been brought to the attention of the trial court by the general objection made, it might be questioned whether the right to take advantage of such infirmity continued and had not been waived.

2. The charge to the jury was made up of a limited number of concise instructions including the following :

‘1 The court instructs the jury that if they believe and find from the evidence that the plaintiff on or about *420April 20,1903, with the intention of becoming a passenger upon one of defendant’s cars, stationed himself at the usual and customary stopping place at the intersection of Fourteenth and Papin streets, where the .defendant received and discharged passengers, and that upon the approach of the car mentioned in evidence plaintiff signalled to the motorman to stop said car, and that thereupon said car was stopped at said place for the purpose of receiving plaintiff as a passenger thereon, and that while sáid car was so stopped plaintiff attempted to board said car, and that while he was so in the act of boarding said car, and before he had gotten to a place of safety thereon, the agents and servants of defendant in charge of said car caused it to be suddenly startéd forward whereby plaintiff lost his hold and footing on said car and was dragged and thrown to the street and injured, then the jury will find for the plaintiff and assess his damages at such sum as they may believe from the evidence will reasonably compensate him for the injuries, if any, he has received; and in determining the damages to be awarded plaintiff, the jury will take into consideration the pain and suffering, if any, he has undergone, the expense, if any, incurred by him on account of doctor’s bills and medicine, and the permanency, if any, of the injuries he has sustained. ’ ’

The other instructions in nowise perfect or cure the insufficiency conspicuous in the terms of this instruction, .as they are confined to directions as to the form of verdict, the power of the jury to disregard the whole testimony of a false witness and the right of defendant to a verdict in event that plaintiff had attempted to board a moving car. This instruction authorized a recovery by plaintiff if the car had stopped for the purpose of receiving him as a passenger and while he was in the act of boarding it, the car was suddenly started, __ irrespective of any consideration whether such act was willful or negligent on part of *421the-servants of defendant, and is vagne and obscure particularly affording the jury little guidance or direction respecting the measure of plaintiff’s recovery for injuries past and prospective. The obligation of defendant to plaintiff was not that of an insurer of his safety but it was incumbent on it to exercise a very high degree of care and vigilance so as to safely transport him, particularly by allowing him a reasonable time to board the car, if plaintiff on his part was exercising ordinary care at the time he was endeavoring to get on the car, and the instruction to the jury should have comprehended proper direction in these material and. indispensable, respects, as well as regarding the legal standard definitely .presented by which a recovery, if any, was to be measured.

The judgment is reversed and the cause remanded.

All concur.