Miller v. Metropolitan Street Railway Company
| Decision Date | 20 May 1907 |
| Citation | 102 S.W. 592,125 Mo.App. 414 |
| Parties | ANNA B. MILLER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas and Ben F. White for appellant.
(1) The court erred in giving instruction numbered one at the request of plaintiff. It placed a greater burden on defendant than the law imposes, in that it declared the law to be that the car should not have been started until plaintiff had become seated. Dougherty v. Railroad, 9 Mo.App. 485; Dougherty v. Railroad, 81 Mo. 325; Maggioli v Transit Co., 10 Mo.App. 421; Yarnell 113 Mo. 576. (2) The court erred in refusing defendant's instruction numbered two. If the crew in charge of the car did not see plaintiff in a position of peril, or by the exercise of ordinary care could not have seen her, defendant is not liable, especially when plaintiff was boarding the car from the wrong side.
Scarritt Scarritt & Jones for respondent.
(1) Appellant's first contention is that the court erred in requiring the jury to find by plaintiff's first instruction that defendant's servants "started said car suddenly and violently without allowing plaintiff a reasonable time to get upon said car and become seated thereon." This instruction is not subject to the criticism attempted to be lodged against it. (2) The court committed no error in overruling defendant's refused instruction 2. Parker v. Railway, 69 Mo.App. 59; Sweeney v. Railway, 150 Mo. 385; Powers v. Railway, 60 Mo.App. 481; Barth v. Railway, 142 Mo. 535; O'Mara v. Transit Co., 102 Mo.App. 202; Albin v. Railway, 103 Mo.App. 308.
Plaintiff sues to recover damages for personal injuries which she charges were caused by the negligence of defendant. She had judgment in the sum of one thousand dollars, and defendant appealed.
From the evidence introduced by plaintiff, it appears that on the morning of July 14, 1902, she attempted to become a passenger on a west-bound cable train operated by defendant on the Eighth street line of its street railway system in Kansas City. The line consisted of two tracks, that on the north being used by west-bound and the one on the south for east-bound trains. The train, which consisted of a gripcar and a trailer, stopped at the intersection of Eighth and Harrison streets, a regular stopping place for the reception and discharge of passengers. Two persons boarded the gripcar on the north side thereof and plaintiff, who had just arrived from the south, crossed the track for east-bound cars and attempted to board the gripcar on the south side. This was an open car with seats on each side of a central enclosure which was occupied by the gripman and the appliances used by him in the operation of the train. The seats were short and were placed on cross section lines. A footboard was provided along each side of the car and passengers in reaching or leaving seats use it as a step. The train remained stationary until plaintiff had placed one foot on the footboard and was in the act of raising the other foot from the pavement when it suddenly started and threw her to the ground, inflicting the injuries of which she complains.
On behalf of defendant, the evidence tends to show that the train did not stop at this crossing at all, owing to the fact that another west-bound train was just behind it, and that beyond the fact that she signalled the gripman to stop, plaintiff made no effort to get aboard, but fell to the ground on account of spraining her ankle in some manner.
The first objection made by defendant is directed against the first instruction given by the court on behalf of plaintiff. This instruction assumed to cover the whole case, and in the hypothesis on which a verdict was directed for plaintiff, was submitted the fact as to whether defendant started the car "suddenly and violently without allowing plaintiff a reasonable time to get upon said car and become seated thereon . . whereby plaintiff was thrown from said car." Point is made that it was error thus to charge the jury as a matter of law that it was the duty of defendant to hold the car stationary until plaintiff had been given a reasonable time in which to seat herself.
The operators of a street car, in the proper discharge of their duty to a person who boards it for the purpose of becoming a passenger, should either hold it at rest until the passenger has been given a reasonable time in which to seat himself, or, if there is no vacant seat, to reach a place where he may support himself while standing, or, if they start the car before the passenger has reached a place of safety, the start should be made gradually to avoid...
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