Ghio v. Metropolitan Street Railway Company

Decision Date03 June 1907
Citation103 S.W. 142,125 Mo.App. 710
PartiesJOHN B. GHIO, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
CourtKansas Court of Appeals

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

REVERSED AND REMANDED.

Cause reversed and remanded.

John H Lucas, Ben F. White and Ben T. Hardin for appellant.

(1) The court erred in giving instruction numbered 3, at the request of plaintiff. (a) It authorizes a recovery by plaintiff if he was injured while the car was "either stopped or was moving very slowly," or "while it was either stopped or was running slowly." There was no proof on which to base that portion relating to its "slowly moving." Plaintiff's testimony was that the car was stationary; defendant's that it was running from four to five miles an hour, when he attempted to alight. McAtee v. Valandingham, 75 Mo.App. 45; Campbell v Houghton, 44 Mo.App. 231; McCarty v. Fagin, 42 Mo.App. 619; Palmer v. Tel. Co., 91 Mo.App. 106; Marr v. Bunker, 92 Mo.App. 651; Railroad v Railroad, 118 Mo. 599; Bergman v. Railroad, 104 Mo. 77; Tyler v. Hall, 106 Mo. 313. (b) It was a departure from the pleading. (c) It authorizes a verdict for plaintiff, although he may be guilty of negligence directly contributing to his own injury. Payne v. Railroad, 129 Mo. 419; Hagan v. Railroad, 150 Mo. 55; Dunkman v. Railroad, 16 Mo.App. 548, 95 Mo. 232; Craig v. Sedalia, 63 Mo. 417; Barton v Railroad, 52 Mo. 253; Murray v. Railroad, 101 Mo. 236; Kelly v. Railroad, 101 Mo. 67; Packet Co. v. Vandergrift, 34 Mo. 399; Dougherty v. Railroad, 97 Mo. 647; 7 Am. and Eng. Ency. of Law 371, et seq.; Murphy v. Railroad, 153 Mo. 261; Moore v. Railroad, 176 Mo. 543; Watson v. Railroad, 133 Mo. 250; Holwerson v. Railroad, 157 Mo. 216; Culbertson v. Railroad, 140 Mo. 35. By a long line of unbroken decisions this is error. Fullerton v. Fordyce, 121 Mo. 13; Barr v. Armstrong, 56 Mo. 589; Caldwell v. Stephens, 57 Mo. 595; Linn v. Bridge Co., 78 Mo.App. 111; McQuillin on Instructions, secs. 103-106; Kupferschmid v. Southern Electric Co., 70 Mo.App. 438; James v. Railway, 107 Mo. 480; Stone v. Hunt, 94 Mo. 475; Waters v. Kansas City, 94 Mo.App. 413; Henderson v. Kansas City, 177 Mo. 477; Comer v. Taylor, 82 Mo. 341; Donnell v. Bank, 80 Mo. 165; Peck v. Ritchey, 66 Mo. 114; Insurance Co. v. Seminary, 52 Mo. 480; Moffatt v. Conkling, 35 Mo. 453. (3) The court erred in modifying instruction numbered 8. As given it ignored plaintiff's own negligence.

Scarritt, Scarritt & Jones for respondent.

(1) The third instruction for plaintiff is not subject to the criticisms lodged against it in the brief of appellant. Parks v. Railway, 178 Mo. 117; 3 Thompson on Negligence (2 ed.), sec. 2923; Parks v. Railway, 178 Mo. 117; Morrissey v. Ferry Co., 43 Mo. 380; Railroad v. Tobriner, 147 U.S. 571. (2) It is not reversible error to submit to the jury a question of law, where the jury find what the court must have declared. Comfort v. Ballingal, 134 Mo. 281; Goodson v. Embleton, 106 Mo.App. 83; Nelson v. Hirsch, 102 Mo.App. 513; Atkinson v. Brown, 68 Mo.App. 618; Baker v. Railway, 147 Mo. 168; Bertram v. Railway, 154 Mo. 639; Tyler v. Hall, 106 Mo. 323; Nicholson v. Golden, 27 Mo.App. 154; Clerk v. Cordry, 69 Mo.App. 15. (3) The court properly modified defendant's instruction numbered 8, so as to make it conform to plaintiff's instruction, numbered 3, and the authorities cited are applicable here.

OPINION

BROADDUS, P. J.

This is a suit for damages for an injury alleged to have been caused by the negligence of defendant in the operation of its street cars. The petition alleges that on the second day of June, 1904, the plaintiff became a passenger on one of defendant's cars at Bellefontaine avenue in Kansas City, Missouri, having paid his fare and obtained a transfer for passage from the intersection of its lines at Walnut street north to Fifth street; that when the car in which he was a passenger arrived just east of the crossing at Walnut street it "was stopped or caused to be run so slow as to be almost stopped, for the purpose of allowing passengers thereon and especially the plaintiff, to get off of said car and to allow plaintiff to continue his journey, which the plaintiff proceeded at once to do, but the defendant disregarding its duty to the plaintiff as its passenger by and through its servants and agents upon and in charge of and managing its said car negligently and carelessly caused and permitted said Eighth street car, upon which the plaintiff was a passenger, to be started and moved with sudden and violent jerks while the plaintiff as such passenger was in the act of alighting therefrom, and without any warning thereof to the plaintiff, and when defendant's said servants and agents upon and in charge of and managing said car saw or by the exercise of ordinary care might have seen the situation of plaintiff while in the act of alighting from said car, to have so managed said car as to have avoided any injury to the plaintiff, by reason of which," etc., he was severely injured. The answer was a general denial and a charge of contributory negligence on the part of plaintiff.

The plaintiff's evidence was that when the car upon which he was a passenger arrived at the crossing on Walnut street, it stopped, and that while he was in the act of alighting therefrom it was suddenly started which caused him to be thrown upon the pavement and injured. The defendant's evidence was that the car did not stop at said crossing, but was moving at the rate of from two to four miles an hour. The verdict and judgment were for the plaintiff from which defendant appealed.

Instruction number 3 given for plaintiff in reference to the position of the car when he attempted to alight therefrom, contains the following language, "and the court further instructs you that if you believe from the evidence that when the car on which plaintiff was a passenger at the time in question . . . either stopped or was moving very slowly, plaintiff was proceeding to alight from said car, and had stepped down from the front platform to the car step, and that defendant's employees in charge of said car saw plaintiff," etc. The criticism of the instruction is, that there was no evidence whatever that the car was moving slowly. It is true that plaintiff's testimony was that the car was stationary at the time, but all of defendant's witnesses testified that it was moving at the time; the slowest rate of speed fixed by any one of them was that it was moving from two to four miles an hour. The word, slowly, has a relative meaning. As applied to a slow-going animal in comparison with a race-horse, the movement of the former would be called slow, but compared with its own movements under different conditions it would be considered rapid. An electric car moving at a speed of two miles an hour would be moving slowly compared with its usual and ordinary speed. It was not for the court to say under the evidence whether or not the car was moving slowly. If the court had refused to submit the question to the jury it would have amounted to an assumption as a matter of law that it was not moving slowly or very slowly. It was a question for the jury. In Dawson v. Transit Co., 102 Mo.App. 277, 76 S.W. 689, the evidence showed, the electric car was moving at a rate of speed of three miles an hour when plaintiff attempted to alight. The court held that "It is not error in an instruction to the jury to describe an electric car as 'moving slowly' when it is going at the rate of three miles an hour." The law of that case was applied by this court in Forrester v. Railroad, 116 Mo.App. 37.

The objection is also made to the instruction that it permits plaintiff to recover notwithstanding the jury may have believed that he was "negligent in proceeding to alight from the car in the manner and at the time he did." This was an application to the case of the humane doctrine, that, notwithstanding plaintiff by his own act of negligence placed himself in a situation of peril, the law imposed the duty upon defendant to have saved him from the consequences of his own negligence, if it could have done so by the exercise of proper care after the discovery of his danger. This instruction was evidently meant to meet defendant's evidence and theory of the case, that plaintiff attempted to alight when the car was moving at a dangerous rate of speed which would have been negligence on his part. It is held that an allegation in a petition that the car had stopped or was moving slowly, is a matter of inducement, that the negligence charged is in starting it up. [Forrester...

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