113 Mo. App. 702 | Mo. Ct. App. | 1905
— Plaintiff was a passenger upon one of defendant’s cable trains operated upon the Ninth street line of its street railway system in Kansas City. She was injured while.alighting from the car and sues to recover damages therefor, alleging that the negligence of defendant was the direct cause of her injury. The answer pleads a general denial and'contributory negligence. Plaintiff recovered judgment in the sum of one. thousand dollars and the case is here upon defendant’s appeal. The error assigned all relate to the action of the trial court in refusing to sustain a demurrer to the evidence and in giving of instructions. First, it is said plaintiff failed to sustain by proof the cause of action pleaded in her petition. The petition charges:
“On the 21st day of March, 1903, plaintiff entered .one of the cars of defendant company at or near the corner of Grand avenue and Ninth street in said Kansas City, Missouri, for the purpose of taking a trip west as*705 a passenger on one of defendant’s cars; that plaintiff’s destination was the corner of Ninth and Penn streets; and that upon the arrival of said car at the corner of Ninth and Penn streets aforesaid, the agents, servants and employees of defendant, in charge of said car, stopped the same for the purpose of permitting passengers to alight from said car, and this plaintiff immediately undertook to pass out of said car to the street below; that while plaintiff was in the act of stepping from the platform of said car, and before she had sufficient time to get safely off from the same, the agents, servants and employees of defendant managing its said railway, and in charge of said car, negligently and carelessly started said car forward with a sudden jerk and at a rapid rate of speed, causing said plaintiff to be thrown with great force and violence off of said car and upon the street below. . . .
“That said injuries were directly caused by the carelessness and negligence of the agents, servants and employees of said car in starting it forward with a sudden jerk while plaintiff was in the act of alighting therefrom; that at the time when said plaintiff started out of said car, other passengers were preceding her, and by the exercise of ordinary care, the agents, servants and employees of defendant might have known that plaintiff was in a place of danger at the time when said car was started, and plaintiff charges that said defendant actually knew that plaintiff was in a dangerous position at the time when said car was started.”
Under the facts disclosed by the evidence, it appears that plaintiff boarded a west-bound train at Grand avenue, her destination being Penn street. The train consisted of a “grip” car and coach. Plaintiff seated herself in the coach near the middle thereof and paid her fare to the conductor. Before reaching Penn street an additional gripcar was attached to the front end of the train to assist it up hill and down a
Plaintiff and her witnesses say that she arose from her seat as the car was slowing, remained standing until it came to a full stop and then walked behind the other two disembarking passengers to the rear platform, and from there was in the act of putting her foot upon the first step when the train suddenly started without warning and threw her violently to the street; that her progress from the time the car stopped was continuous and as expeditious as possible. She wras carrying some bundles which prevented her from using the railings and other holds provided. Further, her witnesses sav the conductor jumped from the train as it was stopping, went to the signal box, received his signal to' go ahead, and without looking to the rear end of the train raised his hand, called “all right” and ran to and boarded the train which started immediately without warning when he gave the signal.
The facts alleged, which it is claimed by defendant are unsustained by any evidence, are, that the conductor
A plaintiff will not be permitted to declare upon one cause of action and recover upon another. When acts of negligence, fundamental to* the right asserted, are specifically alleged, they must be proven as alleged. [Waldhier v. Railroad, 71 Mo. 514; Ely v. Railroad, 77 Mo. 34; McManamee v. Railway, 135 Mo. 440.] , But this well settled rule is in its application restricted by statute to predicative facts without proof of which the cause of action pleaded cannot be established in its full scope and meaning, and not to facts that, particularizing only, may be eliminated without changing the cause of action. [R. S. 1899, sections 655-798; Waldhier v. Railroad, supra; Leslie v. Railroad, 88 Mo. 50; Ridenhour v. Railroad, 102 Mo. 270.]
Whether or not the facts under consideration are substantive is therefore the question for determination. A fair and reasonable construction of the petition leads to the conclusion that the act of negligence charged Avas
Defendant says that even under the evidence of plaintiff she was given ample time to leave the car; that defendant is required to stop for the discharge of passengers a reasonable time, after the lapse of which the conductor is not bound to look to the places of exit for departing passengers, but may assume that they have safely, alighted. Street railways are common carriers and. as such must employ the highest degree of care to avoid injury to their passengers. [Hite v. Railway, 130 Mo. 132; Jackson v. Railway, 118 Mo. 199; Barth v. Railway, 142 Mo. 535; Fillingham v. Transit Co. 102 Mo. App. 573.] The relation of carrier and passenger continues to the time the latter alights from the train. It was not only the duty of defendant to safely carry plaintiff, but when her destination was reached and the car stopped, to hold it stationary while she was alighting. [Leslie v. Railroad, supra; Grace v. Railway, 156 Mo. 295; Dougherty v. Railroad, 81 Mo. 330; Weber v. Railway, 100 Mo. 194; Becker v. Bldg. Co., 174 Mo. 246; Cullar v. Railway, 84 Mo. App. 340.]
The characterization of the acts of carriers in the handling of their traffic often depends upon the circumstances and conditions under which an act in question is done. It has been held that the conductor of a train upon a steam railroad running across the country may, in the exercise of proper care, signal the engineer to start the train after it has stopped at a station a reasonable time for passengers to leave without looking at all of the places of exit .to see if any one is in the act of alight
As before stated, the gravamen of the charge is the starting of the car with plaintiff in the situation described. Actual knowledge on the part of the conductor of her position is beside the real issue. His act in starting the train was tortious, either with or without such knowledge if it, without fault of her’s contributing, produced her fall. [Ridenhour v. Railway, 102 Mo. supra; Duffy v. Transit Co., 104 Mo. App. 235.] Under these conclusions it follows that a failure of proof with respect to either of these facts and the omission to refer to them in the instructions as essential to a recovery do not constitute substantial error.
Plaintiffs first instruction was in part as follows: . . . and that said train upon which plaintiff was a passenger stopped on or near the crossing on Penn and said Ninth streets for the purpose of permitting passengers to alight therefrom, and that while said train Avas standing on or near said crossing plaintiff, took a position upon the back platform of the rear car of said train for the purpose of stepping off said car, and that while plaintiff was in that position, and before she had sufficient time to get safely off said car, the agents, servants
No claim is made by any witness that plaintiff stopped upon the platform. Plaintiff’s witnesses said that the car started when she was in the act of stepping therefrom; and those for defendant testified that she attempted to step off after the car started. There is no controversy over the fact that when the car started she was in the act of leaving it. The instruction under consideration required the jury to believe, in order to find for plaintiff, that, “at the time,she attempted to alight from said car she was exercising ordinary care for her own safety in doing so under the circumstances shown in evidence.” And defendant’s fourth instruction told the jury that, “although you may find and believe from the evidence that defendant’s agents and servants Avere negligent in starting the car before plaintiff had safely alighted from said car, yet if you further find and believe from the evidence that plaintiff voluntarily stepped off of said car after it had started, and by reason thereof fell and Was injured, yoúr verdict will be for the defendant.” Thus, it appears that the only act of negligence asserted against plaintiff Avas that of attempting to alight after the car' started. Of course, if plaintiff Avas not overthrown by the unexpected starting of the car, but endeavored thereafter to step from the platform while the train was in motion and sustained the fall in consequence thereof, such negligent conduct would preclude her recovery. But there is no room for the contention that the instruction under consideration permitted
Plaintiff’s second instruction directed the jury to include within the recoverable damages “fair compensation to her for any pain of body or mind which you may find and believe from the evidence she has suffered and tvill suffer by reason of the injury.” etc. These words are •essentially different in meaning from those used in the instruction condemned in the case of Ballard v. Kansas City, 86 S. W. 479, 110 Mo. App. 391, cited by defendant. There compensation was to be awarded, “for any pain of body and mental anguish that plaintiff rhay suffer in the future.” The use of the words, “may find and believe,” followed by' the restrictive words, “will suffer,” plainly ■confined the inquiry to such pain as the jury believed was reasonably certain to resnlt from the injury, and did mot permit indulgence in conjecture or speculation relative to possible or contingent future happenings.
No substantial error appearing in- the record, the judgment is affirmed.