126 Mo. App. 120 | Mo. Ct. App. | 1907
Lead Opinion
Plaintiff brought this action to recover damages for injuries received while a passenger on one of defendant’s cable street railway cars. He recovered judgment in the trial court.
The petition states that the car stopped for passengers and plaintiff got upon the “footboard” of the grip car. It then states the construction of such grip car with great particularity. It is drawn rather out of the ordinary way. After stating the duties of the gripman and that he was in control of the movement of the car by means of the grip and levers and brakes, it is then stated that “he negligently and carelessly caused said car to move forward with a great and sudden jerk thereby throwing plaintiff off of said footboard,” whereby his leg was broken, etc. It then proceeds to state the extent of his injury, his suffering and pain, his expenses, his loss of time and abandonment of business, etc. It then, in a somewhat disconnected way, recurs to the matter of negligence and states the aforesaid injuries resulted from “defendant’s negligence in the following-particulars, that is to say: In causing said car while plaintiff was upon said footboard to move forward with great suddenness and with a jerk, instead of slowly and gradually, (and) in moving said car at all while plaintiff was on said footboard and without allowing him a reasonable time within which to reach a place of safety on said car.” The first of these two charges is evident
Plaintiff’s first instruction submits two hypotheses of negligence, one that the gripman started the car by a sudden jerk or forward movement, and one by increasing the speed of the car with a sudden jerk or forward movement. The sudden movement of a cable car from carelessness in starting, arid a sudden lunge forward increasing the speed while running, are two different classes of acts and require different preparation of defense. Making one of these an issue when it has not been alleged could well leave a defendant unprepared to meet such a state of case. There are, perhaps, many unavoidable or excusable causes for a suddenly accelerated movement of a cable car already in motion; when, perhaps, no excuse could be found for starting a car suddenly and violently.
It is, however, suggested that instructions given for defendant cure whatever was wrong in that instruction. We do not think so. The best that can be said of an instruction for a plaintiff saying, you may; and one for a defendant saying, you shall not, is a strong ten
In response to defendant’s contention that there was no case made for the jury and that its demurrer to the evidence should have been sustained, we have examined the record and find that the trial court properly overruled the demurrer.
The judgment will be reversed and the cause re-mended.
Rehearing
ON rehearing.
The above opinion, written by Ellison, J., was filed at a former term of court. A rehearing was granted and the cause re-submitted. A re-examination of the record and briefs of counsel convinces us that we properly disposed of the question's involved and, therefore, that the former opinion should be adopted as the expression of our present view of the case.
Accordingly the judgment is reversed and the cause remanded.