103 Mo. App. 459 | Mo. Ct. App. | 1903
— The petition is in two counts. The, first alleges, in substance, that on November 24, 1902, plaintiff, desiring to become a passenger on one of defendant’s cars bound eastward on Maryland avenue, in the city of St. Louis, took his stand at the southeast corner of Euclid and Maryland avenues, the proper and usual place where defendant’s cars stopped to take on passengers; that when the car approached Euclid avenue, he signalled the motorman in charge of his desire to become a passenger and the motorman, as he approached Euclid avenue and crossed the same, slowed down his car; that on reaching the south crossing where the plaintiff was standing, the car was slowed down to a stopping point, leading plaintiff to believe that the car had stopped to receive him and others standing by who. wished to become passengers, when plaintiff took hold of the handrail at the rear end of the car and attempted to board the same, but while he was in the act of getting on, the defendant negligently, carelessly and recklessly failed to let the car remain standing a sufficient length of time to allow plaintiff to get on the ear, but started it forward with great suddenness and speed, whereby plaintiff was thrown down and dragged some distance, by reason of which he sustained severe and permanent injuries.
The second count omitted the ordinance, alleged the car came to a standstill. The other particulars axe in the first count.
The section of the ordinance pleaded, among other things, provides 'that street cars operated in' the streets of the city shall make stops at certain points for the purpose of letting passengers get on and off the cars. It requires the ears travelling eastward to stop on the east side of the streets intersecting the one on which the car is travelling .for the purpose of letting persons get on and off the car.
The answer was a general denial and a plea of contributory negligence. The plea of contributory negligence was put in issue by a reply.
Before proceeding to trial, the defendant moved the court to require the plaintiff to elect upon which count he would proceed to trial. This motion was denied and the case proceeded to trial on both Counts.
' The evidence offered by the plaintiff tended to prove the allegations as made in both counts of his petition, especially as laid in the first count, that the car did not come to a standstill but. that after plaintiff gave the motorman the usual signal to stop, he turned off the power and twisted the brake and when the rear of the car came opposite to where plaintiff was standing, the car was moving very slowly and plaintiff took hold of the handrail with the intention of getting aboard, when the ear was suddenly started forward and plaintiff was jerked off his feet and dragged about twenty-five feet. He was then helped or pulled on the car by some one standing on the rear platform. Plaintiff testified that on the spur of the moment, after he was jerked off his feet, the thought came to him to hang on. He further testified that he was hurt in the groin of his left leg;
Section 1761, of city ordinance 19919, was read in evidence.
At the close of plaintiff’s evidence, defendant again moved the court to require plaintiff to elect upon which count of the petition he would rest his case. This motion was also denied.
The only witness offered by the defendant was the conductor, who, presumably, was on the car when the accident occurred, but he testified he knew nothing whatever of the occurrence. He said his car was eight minutes behind time and that about two months afterwards, at the request af defendant, he made a report of the trip to the defendant. This report was offered in evidence but was excluded by the court. The motorman was no longer in the employ of defendant and could not be found by the defendant’s claim agent, but the conductor testified that the motorman was in the city and that he saw him almost daily.
The court gave the following instructions for the plaintiff:
“1. The court instructs the jury that if you find and believe from the evidence that on or about the*468 twenty-fifth day of November, 1902, tbe defendant was operating certain lines of street railroads in tbe city of St. Louis, Missouri, and particularly a double-track line of railroad running east and west on Maryland avenue, past the intersection of Maryland and Euclid avenues, in said city. And if you further find and believe from the evidence that the plaintiff attempted to board one of the defendant’s east-bound cars on Maryland avenue, at the intersection of said Maryland and Euclid avenues, and on the east side of said Euclid avenue and south side of said Maryland avenue, at a place where defendant’s cars were in the habit of stopping to receive passengers, and that plaintiff, at said time and place, had reason to believe, and did believe, that said car was stopping for passengers to board said car at said place. And if you further believe and find from the evidence that the plaintiff took hold of the handrail of said car at the rear end thereof for the purpose of becoming a passenger on said car. And if you find from the evidence that the defendant’s servants in charge of said car knew, or by the exercise of ordinary care, should have known, that plaintiff was attempting to board said car as a passenger; and if you further believe from the evidence that after the plaintiff had so taken hold of the handrail of said car at the rear end thereof for such purpose, the said servants in charge of said car suddenly started the ■same before the plaintiff had a reasonable time to get upon said car and to a place of safety therein, and that the injury complained of was caused by the failure to stop the car and by such sudden starting of the car under such circumstances; and if you further believe from the evidence that the plaintiff at the time exercised ordinary care in attempting to board the car in the manner shown by the evidence, then your verdict should be for the plaintiff.
“2. The court instructs the jury that at the time said Robert. W. Maguire was injured, the city ordinance introduced in evidence imposed upon the servants,*469 agents and employees of the defendant, while running, conducting or managing the street car in question, the following duties: That they should stop cars going eastward on Maryland avenue on the east side of Euclid avenue for taking on passengers; that they should bring cars going eastward to a full stop on the east side of Euclid avenue at the intersection of Euclid avenue and Maryland avenue whenever requested, signalled or motioned by any person standing at the southeast corner of the intersection of said Maryland and Euclid avenues desiring to board such cars, and in every instance to keep such cars stationary for a reasonable length of time 'to enable such persons desiring to board such cars safely to board such cars. And if the jury believe from the evidence that the agents, servants and employees of the defendant, while running, conducting or managing said street car upon the occasion referred to, failed to perform any one or more of the duties specified in this instruction, such failure was negligence. And if you believe from the evidence that in consequence of such negligence in any or more of the particulars herein-above mentioned, the said Robert W. Maguire received the injuries which are complained of in his petition herein your finding should be for the plaintiff, unless you further believe from the evidence that the said Robert W. Maguire was guilty of negligence which contributed to the injury; and the burden of proving contributory negligence on the part of said Robert W. Maguire rests on the defendant, and unless the defendant has proven such contributory negligence by a preponderance of the evidence, you can not find for the defendant on that ground.
“3. The court instructs you, gentlemen of the jury, that if you find for plaintiff you should, in estimating his damage's, consider his physical condition before and since receiving the injuries for which he sues, as shown by the evidence, the physical pain and mental anguish, if any, suffered by him on account of his in*470 juries at the time of and since said injuries, as shown by the evidence; and for such mental anguish and physical pain and injury, if any, as you may, from the evidence, find it is reasonably certain he will suffer in the future thereform, and you will find a verdict for such sum as in your judgment, will, under the evidence, reasonably compensate him for such injuries.
“4. The court instructs the jury that the charge of negligence made against the defendant in the plaintiff’s petition is that the motorman of defendant’s ear slowed down the said car to a stopping point, inducing plaintiff to beleive that said car had stopped to receive him as a passenger, and that while plaintiff was in the act of boarding said car the same was suddenly and in violation of the ordinances of the city of St. Louis, started, throwing plaintiff to the ground and injuring him. With respect to the foregoing charge of negligence you are instructed that the burden is upon the plaintiff throughout the whole case of establishing to your satisfaction, by the preponderance or greater weight of the testimony, that the defendant’s car did slow down, either for the purpose of receiving plaintiff as a passenger, or to so slow a speed as to cause the plaintiff to believe that it was slowing down for the purpose of receiving him as a passenger, and that the same was so suddenly started while plaintiff was in the act of boarding the same as to cause him to be injured, and unless the plaintiff has so proven, he is not entitled to recover and your verdict must be for defendant.”
The defendant asked and the court refused the following instructions:
‘ ‘ 1. The court instructs the jury that under the law and the evidence in this case the plaintiff can not recover and your verdict must be for the defendant.
“2. The court instructs the jury that under the pleadings in this case they must find in order for plaintiff to recover that he attempted to board the defendant’s car while the same was at. a standstill and if they*471 find at the time plaintiff attempted to hoard the car the same was moving, then he can not recover and your verdict must he for the defendant.
“3. The court instructs the jury that if they find from the evidence that the defendant’s car was behind time and for that reason did not stop or slow down at the southeast corner of Maryland and Euclid avenues, in the city of St. Louis, Missouri, for the purpose of receiving passengers thereon, but simply slowed down for the purpose of crossing the tracks in said Euclid avenue, and that while passing said southeast corner plaintiff attempted to board defendant’s car while it was in motion, and that such effort on the part of plaintiff was negligence under the circumstances, and caused or contributed to his injuries, then he is not entitled to recover and your verdict must be for the defendant.
“4. The court instructs the jury that if they find from the evidence that the defendant’s car was behind time, and for that reason did not stop or slow down at the southeast corner of Euclid and Maryland avenues, in the city of St. Louis, Missouri, for the purpose of receiving passengers thereon, but simply slowed down for the purpose of crossing the tracks in said Euclid avenue, and that while passing said southeast corner plaintiff, without the knowledge of the agents of defendant in charge of its car, attempted to board said car while it was in motion, and that such effort on the part of the plaintiff either caused or contributed to his injuries, then he is not entitled to recover, and your verdict must be for the defendant, even though you should also find that at the time plaintiff attempted to board said car its motion was accelerated or increased.”
A verdict for $3,500 in plaintiff’s favor was returned signed by nine of the jurors. A motion for new trial proving of no avail, the defendant appealed.
It is further contended that the plaintiff made a mistake-in supposing the car had slowed down for the purpose of receiving him as a passenger and should bear the consequences of his own mistake; If he did make a mistake, according to the evidence the mistake was induced by the conduct of the motorman in turning off the power, twisting the brake and slowing down the car at a time and place, and under circumstances, that would induce any one in plaintiff’s place to believe as plaintiff believed, that is, that the motorman intended to stop the car to let him and the other eight or ten persons present and waiting for a car to get aboard, and the defendant, not the plaintiff, is responsible for the consequence of the mistake, if plaintiff himself was not guilty of contributory negligence in attempting to board the car while in motion.
“1. That the car going eastward on Maryland avenue should have been stopped at the east side of Euclid avenue. This broad duty is imposed by this instruction without- reference to whether there were any passengers there or not, or whether any signal had been given or not.
“2. That defendant should have brought the car to a full stop at the east side of Euclid avenue when signalled, and,
“3. That defendant should have kept the car stationary for a reasonably length of time to enable per*475 sons, then desiring to hoard the car, ‘to hoard’ the car.”
These objections are entirely fanciful and a reading of the instruction will dispel each one of them.
The judgment is affirmed.