Parker v. Metropolitan Street Railway Co.

140 Mo. App. 703 | Mo. Ct. App. | 1910

ELLISON, J.

Defendant operates electric street cars on the streets in Independence, Missouri and plaintiff attempted to take passage on one of them when he was throAvn therefrom, Avhieh he alleges was caused by the negligent starting of the car. Hp recovered judgment in the trial court.

It appears that plaintiff awaited a car at a regular stopping place on a street crossing, and that as one approached he signalled it to stop. That as it came to a stop he took hold of the handrail, put one foot on the lower platform step and had just raised his other foot from the ground when the motorman started the car forAvard, throAving him off and onto the ground, Avhereby he Avas injured. It appears that he had a dinner pail and a small empty tin bucket in one hand and that while struggling to maintain himself on the car he was carried about sixty feet before he fell to the ground.

The trial court properly refused instruction “A” offered by defendant. If for nothing else, it is draAvn on a theory that the motorman intended to pass plaintiff, who Avas on the south side of the street, and cross over to the north side, Avhere he Avould stop for him. There Avas no evidence of this. There was evidence for defendant tending to shoAV that the north side of the street Avas the usual stopping place; but in this instance it was shoAvn that the motorman, in answer to plaintiff’s signal, had either actually stopped or was so near stopped, it was difficult to tell. It is apparent from the testimony of the motorman himself, introduced by defendant-, that he was not intending to pass plaintiff bnt that he had either actually stopped or had about stopped. He said “it had not come quite to a stop, bnt had slowed down very slow.” And the conductor testified that “I don’t think the car came to a dead stop, that’s my recollection, it did not.”

The case show's that while the north side of the street may have been the usual stopping place, yet it w'as not ahvays so, and in this instance the plaintiff w'as on the south side and the motorman had either actually stopped the car for him or was doing so when plaintiff, possibly before it came to a “dead stop” got upon the step and then the power w'as turned on, starting the car forward so as to throw him off.

We think the criticism of the action of the court in giving and nefusing instructions, much too critical for practical purposes. Those given for plaintiff did not go beyond the allegations of the petition. The expression “get upon the platform or enter the car” was disjunctive. It could not have been misunderstood, nor, under the evidence, could it possibly have harmed defendant.

Exception was taken to the action of the court in overruling an objection to a question asked of a physician w'ho attended upon plaintiff. The objection w'as based upon the assertion that it called for a conclusion and thereby usurped the functions of the jury. In our opinion the objection came too late. [Thomas v. Metropolitan Street Railway Company, 125 Mo. App. 131, 135.] It is true that defendant’s counsel stated that he objected as soon as he could, but the record does not state this as a fact, or that the court thought so. It merely gives counsel’s statement. But passing that by, we find it difficult to understand clearly the position of the parties at this stage of the trial. After some objections, beginning on page 46 and ending on page 48 of the record, in Vhich defendant’s counsel stated, concerning a question as to plaintiff’s nervous system, that “the doctor ought to say what he found, not what might be found,” the court .took that yiew and so the question was then put in that way. But when answered, defendant moved to strike out the answer. Again a question was asked looking to the doctor’s opinion. Again defendant’s counsel asserted the view that the doctor should state what he found, as he “saw the patient.” The court ruled with defendant and plaintiff excepted. Plaintiff then put a question as ruled to be proper by the court. Then, when answered, defendant objected. It seems to us that the rulings of the trial court were in line with defendant’s requests or insistence, and it should not now complain. A party cannot be allowed a different position on appeal from that taken at the trial, nor complain of errors which he invited. [Bensieck v. Cook, 110 Mo. 173.]

Finally it is contended that the verdict ($2250) is excessive. It has met the approval of the trial court and if the evidence in plaintiff’s behalf is to be credited, as it must be at this stage of the case, we cannot say that the amount is outside the bounds of reason.

We have not discovered any error which substantially áífected the merits of the controversy, or which would in any way justify our interference, and the judgment will accordingly be affirmed.

All concur.