250 Mo. 602 | Mo. | 1913
This is a suit for personal injury ah leged to have been suffered by plaintiff through the negligence of the motorman in operating an electric street car on defendant’s street railway in Kansas City. That part of the petition which relates to the issue in this appeal is as follows:
“That on or about the 9th day of September, 1907, plaintiff attempted to board one of defendant’s westbound cars on said Thirty-first street at or near the intersection of said Thirty-first street with Cóllege avenue, for the purpose of becoming a passenger thereon. and that while he was in the act of so doing, de*608 fendant so carelessly and negligently ran, operated and managed said car as to canse plaintiff to be thrown therefrom and upon said Thirty-first street and caused him to be run over by said car and thereby caused him to be greatly injured.”
Damages were asked in the amount of thirty-five thousand dollars. The answer was a general denial, and general plea of contributory negligence.
The accident happened oh Thirty-first street, which extended east and west and was occupied by a double track street railway operated by defendant with electric power. The north track was used by the westbound traffic and the south track by eastbound traffic, after the usual manner of American railways. The street was unpaved from Indiana avenue on the east to Bellefontaine avenue on the west, say three or four blocks. For this entire distance, and extending a distance of three city blocks south from Thirty-first street the land was fenced in a single-field which was called at the trial “the pasture” and was in grass, with a few trees. The plaintiff was a landscape gardner, twenty-eight years old, something over six feet in height, weighing about two hundred and fifteen pounds, and was strong and active. He had been examining the sod in the- pasture, had purchased some of it, and wanted to return to his work at Thirty-first street and Woodland avenue, about ten blocks west.- There were no houses on the south side of Thirty-first street between Indiana and Bellefontaine and only one or two on the north side. None of the streets were paved in that vicinity. The plaintiff, who was his own sole witness as to the immediate circumstances of the accident, said he had just come up .to the wire fence along the south side of Thirty-third street opposite to a travelled .road that turned into it both ways on the north side. He pressed down the wire, stepped over the fence, and saw the car coming about a hundred feet to the east, and signaled with his ■ right hand for it to stop. The motorman “just nodded
“When I reached the north rail of the south track I gave him another signal of the same kind, just in a way to be sure of it. The car came on, and when I gave this signal I stepped across from that rail over to where I could get on the car. The car was running at the same rate of speed. I stepped over there to wMt until where I could get on, and then I would step on; I got hold with both hands and stepped on. I should say the car was running' something like two miles an hour. I stepped my right foot on the step and reached up and caught hold with this hand: I didn’t get a very good hold, but when the car went on, the car just jumped; caught hold of the car with the right hand on the handle of the body of the car; my right foot was on the step.
“My left hand just had caught hold of the other handle, the handhold on the side of the vestibule; did not get a firm hold, just got my fingers on the handle and the car started; it started with a jerk, that is what*610 pulled this hand loose'. All those cars start with a jerk; it jerked this-hand loose and I went with my back right around with the" car and I fell under it. ’ ’
The appellant introduced much testimony to the effect that at the time plaintiff undertook to board the car it was running from ten to twelve miles per hour ; that he did) not signal nor communicate with the motorman in any way, but simply stood beside the track and caught it as it passed.
There was no evidence introduced by the defendant as to the character of the plaintiff’s injuries. The testimony of the surgeon who treated him from the day after the accident, when his right leg had already been amputated about midway between the ankle and the knee, up to the time of the trial six months afterwards, was to the effect that “he was generally bruised up in all parts of his body.” Among these injuries, in addition to that which made the amputation necessary, was a compound fracture of the nose which has left a scar and some disfiguration; the fifth metacarpal bone of his right hand was broken and the fourth one bruised, and was bruised about the back, shoulders and chest. He has lost the use of his right hand and forearm to a considerable extent, the muscles supplied by certain nerves seeming to be powerless. He has no use of nor sensation in the ring and little fingers of his right hand. The hand is affected by a form of paralysis. The surgeon thinks the condition is permanent.
At the close of plaintiff’s testimony, and also when all the testimony was in, the defendant asked an instruction in the nature of a demurrer to the evidence which was each time refused by the court and defendant excepted. " The court then gave the following instructions for plaintiff.
“1. A carrier of passengers is required to use the highest degree of care reasonably practicable among prudent and skillful men in that kind of business to carry its passengers safely, and its failure, if any, to
"2. If the jury find and believe from the evidence that on September 9', 1907, the defendant was operating the car on which plaintiff claims to have attempted to take passage, for the purpose of carrying passengers for hire, and if the jury further find and believe from the evidence that on said September 9, 1907, plaintiff, while standing at or near the intersection of Thirty-'first street and College avenue, if he was, signaled defendant’s motorman in charge of its westbound car, approaching said point, of his intention, if any, to become a passenger upon said car at said place; and if the jury further find and believe from the evidence that said motorman, in obedience to his signal, slowed down said car as it approached the place where plaintiff was standing, for the purpose of receiving him as a passenger thereon while it was so slowed down and moving slowly at such point; and if you further find and believe from the evidence that while said car was so slowed down and so moving slowly at such point, if it was, the plaintiff stepped upon the step of such car for the purpose of becoming a passenger thereon, with the knowledge and consent, if any, of the motorman in charge thereof; and that while the plaintiff was so getting upon said ear and before he had a reasonable time or opportunity to get upon said car as a passenger, defendant’s motorman in charge of said car negligently caused or suffered said car to suddenly go forward with increased speed and shock, and that thereby plaintiff was caused to be thrown and fall from said car and sustain injuries; and if the jury further find and believe from the evidence that the defendant’s motorman so in charge of said car, while plaintiff was in the act of get
“3. In determining whether or not the plaintiff was guilty of contributory negligence in getting on a moving car, if he was, you are instructed that if in so doing he used such care as would have been used by an ordinarily prudent person under the same or similar circumstances, then he was not guilty of such contributory negligence.
“4. Even though you may believe from the evidence that the plaintiff was guilty of negligence in getting upon a moving car, if he did, still, if you further believe from the evidence that he would have reached a position of safety on said car except for a subsequent and accelerated negligent movement thereof, if any, by the motorman in charge of such car, and that such subsequent movement, if any, was the direct cause of his injuries, if any, then plaintiff’s prior negligence, if any, in attempting to get upon said car is in itself no defense to this action, but you cannot find for plaintiff except you find the facts to be as outlined in instruction 2. ’ ’
Also an instruction relating to damages, which closed as follows: “Tour verdict cannot exceed the sum of thirty-five thousand dollars.” At the defendant’s instance, the court gave, among others unimportant to the issues here, the following instruction:
“7. The court instructs the jury that it was not the duty of the defendant’s motorman to stop his car in the middle of the block to permit a person to become a passenger. So that in this case if you find and believe ' from the evidence that the motorman operating defend*613 ant’s car was running it at full speed, and did not stop or slacken tire speed of his car to permit plaintiff to become a passenger thereon, your verdict will be for the defendant.”
And refused the following:
“A. If the jury believe and find from the evidence that plaintiff attempted to get upon defendant’s car while the same was in motion, and fell by reason of the car being in motion at the time he so attempted to get-on said car, your verdict will be for the defendant.” To all adverse rulings defendant duly excepted. The verdict was for plaintiff for twenty-five thousand dollars.
Motions for a new trial and in arrest of judgment were filed in due time, and after a remittitur of seventy-five hundred dollars, which the court required as a condition of sustaining the judgment, these motions were overruled in the following order:
“Now >on this day comes the plaintiff and remits from the amount of the verdict heretofore rendered in his favor the sum of seven thousand five hundred dollars, leaving the balance of said verdict seventeen thousand five hundred dollars. Whereupon defendant’s motion for a new trial of this cause, also- motion in arrest of judgment, are by the court overruled, to which said rulings of the court defendant excepts. ’ ’ >
This action is preserved in the bill of exceptions as follows:
“On Monday, March 30', 1908 the same being the sixty-seventh day of the January term, 1908, the court overruled the defendant’s foregoing motion for a new trial and motion in arrest of judgment. To which action and ruling of the court in overruling said motion for a new trial and said motion in arrest of judgment the defendant at the time duly excepted.”
Judgment was thereupon entered for seventeen thousand five hundred dollars, from which this appeal is taken.
The entry in"the bill of exceptions on which this question has been raised is as follows: “On Monday, March 30, 1908, the same being the sixty-seventh day of the January term, 1908, the court overruled the defendant’s foregoing motion for a new trial and motion in arrest of judgment. To which action and ruling of
The appellant reasons, however, that the court should have acceded to its request to peremptorily instruct in its favor because, under the pleadings and evidence, there could he no recovery unless upon the
A short statement of the testimony tending to prove the facts relied on by respondent to sustain the judgment will enable us to apply these principles to the subject of this paragraph.
The locality in question was outside the area of paved streets. The accident occurred on Thirty-first street, which extends westward, the direction in which the car was running, from Indiana avenue, a distance of three blocks to Bellefontaine avenue. Between these' points no street approaches it from the south but the entire distance is included in a pasture. From the north College avenue, the first street west of Indiana avenue, is opened into it. The next street to the west is not opened through the land tying immediately north of Thirty-first street, but the travel from that direction seems to have been deflected towards the west, and comes into Thirty-first street at the, point where the alley east of Bellefontaine avenue was located, which is variously described in the evidence to be at a distance
It is a matter of common knowledge and arising from necessity that street railways do not ordinarily maintain terminal stations for receiving and discharging passengers, which must be done with such frequency as to accomplish the object of that class of pub-
It is intimated, however, by the appellant in its argument that this permission could only be extended by bringing the car to a dead stop. This is a mistake. It may be granted in any way well calculated to notify the would-be passenger of that fact, and by giving him an opportunity to enter the car with perfect safety; and it seems absurd to say that as a matter of law it is unsafe for one enjoying all the vigor of health and manhood, which the plaintiff said he enjoyed at that time,
The case does not rest upon the theory that the injury was caused by the fact that the car was in motion at the time the plaintiff attempted to enter it, but that it was caused by the sudden acceleration of is movement while he was in the act of entering, and necessarily in a position rendering him easily susceptible to being thrown down by such a movement. If the plaintiff’s testimony were true, and we must assume it to be true for this purpose, he became a passenger when he attempted to enter the car, and the defendant was charged with the exercise of such care as is incident to that relation. Whether or not he was guilty of contributory negligence in so doing was a question for the jury.
The principal issue presented in the case was squarely upon the question as to whether, as asserted
This refers alike to all conditions of speed which. the jury were authorized to infer from any evidence in the case.
Under these circumstances the court, in the first instruction given for plaintiff, told the jury in a general way that “a carrier of passengers is required to use the highest degree of care reasonably practicable among prudent and skillful men in that kind of business to carry its passengers safely, and its failure, if any, to use such care would constitute negligence on the part of such carrier.” There was nothing in any of the instructions given by the court which defined the word “passenger” to the jury or told them what facts to which the evidence was applicable would constitute the plaintiff a passenger. The instruction quoted simply assumed that he was somehow a passenger, and told the jury that he was entitled to the high degree of care' incident to that relation. This left the triers of the fact in the same position of uncertainty as to what constituted the relation as was the plaintiff when he charged in his petition not that he was a passenger, but that he was getting on the ear for the purpose of becoming a passenger, and when he stated in his second instruction,
We have thought that the vice of the first instruction might be cured by the closing words which seem to have been an afterthought in the fourth, which are as follows: “but you cannot find for plaintiff except you find the facts to be as outlined in instruction 2.” The conjunctive “but,” however, with which this modification is introduced, naturally as well as grammatically confines its effect to the connection in which it occurs.
For the reasons given we are compelled to hold that the giving of the first instruction for the plaintiff was error; and believing, as we do, that it was of such a nature as materially to affect the verdict the judgment will be reversed and the cause remanded for a new trial.
PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.