115 Mo. App. 445 | Mo. Ct. App. | 1905
(after stating the facts). — Action for personal injuries alleged to have been received by plaintiff by the premature starting of one of defendant’s trolley cars while plaintiff was in the act of boarding it. The accident occurred June 3, 1901, at the intersection of Delmar and Bayard avenues in the city of St. Louis. Delmar avenue runs east and west and Bayard avenue north and south, the latter running to the former, but not across it. That is to say, Bayard avenue starts at the north line of Delmar and runs thence northward. Passengers are received at the intersection of those streets. The stopping place for taking them on board east-bound cars is at a point on the south side of Delmar where the east line of Bayard would strike were that street prolonged southward beyond Delmar.
The essential disputes of fact in the case relate to whether plaintiff stood at what would be the southeast corner of the two avenues did Bayard cross Delmar, or at the southwest corner, and whether he attempted to board the car while it was in motion or at rest. His testimony, and he was corroborated by a man who said he was an eyewitness, is that he took his stand at what would be the southeast corner of the two avenues if Bayard crossed Delmar; that is, at the usual place to take passage on east-bound cars. The testimony of the defendant’s witnesses, namely; the conductor, the motorman and a passenger, is that plaintiff stood at what would be the southwest corner and that the car yyus in m0_
Plaintiff was an elderly man and the injury he received was very severe; a permanent hernia which never can be relieved except by a dangerous surgical operation. The existence of the hernia was proved by reputable physicians and we have no doubt the plaintiff is suffer-' ing from it. He swore he never had anything of the kind before and that it was caused by the injury; nor was there any evidence to the contrary.
An earnest appeal is made to us to reverse the judg
It is argued that the physical facts show the accident could not have happened in the manner plaintiff testified. The supposed physical facts are that plaintiff said he was thrown ten feet by the movement of the car and whirled around. The argument is that if the car had been motionless when he attempted to get on it, it could not at once have moved forward with velocity enough to throw him that distance and, therefore, it must have been in motion when he caught hold of it. It looks improbable that a car could start from a motionless state with such violence as to throw a person in the act of stepping on it, ten feet away. But we do not understand that the plaintiff meant to say he was thrown exactly ten feet, or that by being thrown he meant hurled through the air. The conductor swore plaintiff was dragged along some distance and finally thrown on the ground. Plaintiff’s statement about how far he was thrown is not of the essence of the case, nor is it supported by the testimony of all the witnesses. The jury were not bound to believe his statement as to that matter, nor can this court assume that it was absolutely true because he swore to it. The testimony of the other witnesses went to show he was not thrown that distance; therefore there was no unity of testimony as to one of the physical facts 'said to control the case. The jury may have disbelieved his statement about how far he was thrown and have believed his statement that the car was still when he attempted to get on it and hurt him by starting prema
Complaint is made of the court’s refusal to give an instruction that if the jury found the physical facts conflicted with the oral testimony, the finding should be in accordance with the former. In so far as that charge was proper, we think it was embraced in the given instructions. As said above, there was no agreement among the witnesses about what the physical facts were. In a sense, nearly or quite all the facts testified about were physical; as they related to where the car was; whether it was at rest or in motion when plaintiff tried to get on; whether it started as he was getting on and the effect on him of the motion it was under already, or the motion suddenly imparted to it. If the testimony showed beyond dispute any fact which rendered it impossible according to the laws of nature, for the accident to have occurred from defendant’s negligence, or unless plaintiff was himself to blame, we would reverse the judgment. But where nothing of that kind is conclusively shown in an action for a personal injury, an instruction like the one requested by defendant is covered by general instructions requiring the jury to determine the issues of defendant’s negligence and plaintiff’s contributory negligence, and to weigh the testimony of the different witnesses according to its probability and reasonableness, or the contrary. To do this jurors would have to compare the statements of any witness with what they believe from the entire evidence the so-called physical facts were. If the jurors thought any statement was irreconcilable with those facts, presumably such statement would be rejected. The expression “physical facts” must be taken to mean in this connection, the location and movements of the plaintiff and the car from the inception to the close of the occurrence, and the effect of