Quinn v. Metropolitan St. Ry. Co.

• Decision Date: 25 February 1909
• Citation: 218 Mo. 545,118 S.W. 46
• Parties: QUINN v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

118 S.W. 46

218 Mo. 545

QUINN v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

February 25, 1909.

Rehearing Denied March 31, 1909.

1. CARRIERS (§ 321)—PASSENGERS—ACTIONS— INSTRUCTIONS—CARE REQUIRED—"HIGHEST" —"UTMOST."

It is usual to use the word "highest" in instructions upon the decree of care required by carriers toward passengers, instead of the word "utmost," and the former word should be used, though there may be but slight difference in their meaning.

2. APPEAL AND ERROR (§ 1067)—HARMLESS ERROR—INSTRUCTIONS.

Where the court instructed that if plaintiff offered himself as a street car passenger when the car stopped for passengers and defendant did not permit the car to remain standing sufficiently long to allow plaintiff to board it, and while he was in the act of boarding it the car was negligently started and plaintiff was injured, he could recover, it was not prejudicial error to refuse a requested instruction that if the car stopped at the usual place, and while it was standing plaintiff attempted to board it as a passenger, defendant was bound to exercise toward him the utmost care for his safety that a prudent man would have exercised under the circumstances.

3. CARRIERS (§ 348) — PASSENGERS—INJURIES — INSTRUCTIONS — CONTRIBUTORY NEGLIGENCE.

In a passenger's action for injuries claimed to have been caused by the premature starting of a street car while he was boarding it, where the evidence showed that the car stopped at a usual place and for the usual time, and plaintiff testified that he was waiting for the car and that he heard and understood the signal to start, and another testified that she boarded the car at the rear and had walked through it when the signal to start was given, an instruction was proper, as going to plaintiff's negligence, that, if the car stopped at the usual place a reasonable length of time to enable plaintiff to board it in safety by exercising ordinary care, the jury should find for defendant.

4. CARRIERS (§ 328)—PASSENGERS—INJURIES — TAKING UP PASSENGERS — CONTRIBUTORY NEGLIGENCE.

Where a street car has stopped for a reasonable time for passengers and gives the signal to start before one attempts to enter, the invitation to enter the car ceases, and one thereafter attempting to enter would be negligent, especially if he heard and understood the signal.

5. CARRIERS (§ 348)—PASSENGERS—ACTIONS— INSTRUCTIONS—CONTRIBUTORY NEGLIGENCE —APPLICABILITY TO EVIDENCE.

Plaintiff testified that when he fell off a street car he had both feet upon the steps and was holding to the guard rails with both hands, and rode a short distance in that position, until a passenger discovered that her child had not entered the car and began to scream, when plaintiff released his hold with one hand, thinking the woman was going to jump off, and was thrown off by a jerk, but it was not shown that the jerk was unusual under the circumstances,

the car being then crossing other tracks. Held, that it was proper to instruct that if plaintiff got on the car and rode some distance in a reasonably safe position, and thereafter let go one of his handholds and fell from the car, the jury should find for defendant.

6. TRIAL (§ 236) — INSTRUCTIONS—CREDIBILITY OF EVIDENCE—PLAINTIFF'S TESTIMONY.

An instruction that while plaintiff is a competent witness, yet in determining the weight of his testimony the jury should consider his interest, and, while the law presumes that what he says against his interest is true, the jury need not believe his testimony in his own favor, but could treat it as true or false, as they believed it when considered with all the other testimony, was erroneous.

7. APPEAL AND ERROR (§ 1064)—HARMLESS ERROR—INSTRUCTIONS—PREJUDICIAL EFFECT —CREDIBILITY OF WITNESS.

The instruction was prejudicial error.

8. APPEAL AND ERROR (§ 1069)—HARMLESS ERROR—PREJUDICIAL EFFECT.

Where counsel agreed to permit a witness' testimony to be read in the jury room if all of it was read, and the stenographer read part of it to the jury, when they told him that they had heard enough and excluded him from the jury room, his failure to read the rest of it was not prejudicial error; it not appearing that the jury knew of the agreement that all of the testimony should be read.

9. EXCEPTIONS, BILL OF (§ 7)—CONTENTS.

Bills of exceptions should show only what actually occurred in court, and what the court stenographer told the court as to what happened in the jury room, where he was sent to read testimony to the jury, should not have been embodied in the bills of exceptions.

10. TRIAL (§ 156)—DIRECTION OF VERDICT.

The evidence introduced by defendant does not aid plaintiff, and, if there was no evidence to go to the jury a demurrer thereto should have been sustained at the close of plaintiff's evidence, without considering defendant's evidence.

11. CARRIERS (§ 346)—PASSENGERS—ACTIONS — INJURIES — SUFFICIENCY OF EVIDENCE — CAUSE OF ACCIDENT.

In a passenger's action for injuries sustained in falling off a street car, plaintiff's evidence held to show that the accident resulted from plaintiff's voluntary act in letting go his hold on the car.

12. APPEAL AND ERROR (§ 1068)—HARMLESS ERROR—DECISION CORRECT ON MERITS.

Where the verdict was correct on the merits, it will not be disturbed for error in instructions.

Appeal from Circuit Court, Jackson County; Jno. G. Park, Judge.

Action by James D. Quinn against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Bird & Pope and T. J. Madden, for appellant. Jno. H. Lucas and Ben F. White, for respondent.

GRAVES, J.

Defendant, a street railway corporation, is sued by plaintiff for personal injuries. Trial in the circuit court, before a jury, resulted in a verdict for defendant, upon which judgment was entered. From this judgment, plaintiff in due form appealed. The negligence charged to the defendant is thus couched in the language of the petition:

"That on or about the 29th day of January, A. D. 1903, at about the hour of 8 o'clock p. m. of said day, plaintiff offered himself as a passenger on a west-bound cable train of said defendant at the junction of Ninth, Main, and Delaware streets, in Kansas City, Jackson county, Mo. That said cable train was not permitted to remain standing a reasonably sufficient length of time to enable said plaintiff to board said train, but was carelessly and negligently started forward by said defendant and its conductor and gripman in charge thereof (whose names are unknown to plaintiff) while plaintiff was in the act of boarding said train, and before said plaintiff had had reasonably sufficient time to board said train. That said cable train was also carelessly and negligently started forward without its said conductor and gripman giving plaintiff any warning of the starting of said train, although said defendant, its agents, servants, and employés in charge of said train, knew, or by the exercise of ordinary care should have known, that plaintiff was in the act of boarding said train, and by reason of the said careless and negligent acts of said defendant as aforesaid plaintiff was thrown and dragged or caused to fall from said train with great force and violence to the street and pavement."

Severe injuries were alleged to have been received, including injuries to the nervous system, brain, back, spine, hip, right side, eyes, arms, shoulders, "and internal injuries, the exact nature of which are unknown to plaintiff." In other words, injuries, both unknown and known, were charged, and in quantity evidently sufficient in number and in quality, sufficient in seriousness, to justify the damages asked in the amount of $5,000.

The answer was a general denial and a plea of contributory negligence. Reply was in the conventional form for such an answer.

The plaintiff complains of the action of the trial court in refusing an instruction asked by him, and in giving several asked by defendant, as well as some given by the court of its own motion. He also urges as error the fact that the trial court erred in permitting the stenographer to read his notes to the jury.

Defendant contends that there was no error in these regards, but urges that even if there were errors thus committed, yet the evidence shows that plaintiff was not entitled to recover, and the verdict is for the right party and should not be disturbed.

1. Plaintiff's instruction which was refused, and of which complaint is made, is in this language: "If you find and believe from the evidence that the cable car in question came to a standstill at the usual stopping place at the junction where passengers were let off and on, that while said car was standing the plaintiff attempted to board the same with the intention of becoming a passenger thereon, then you are instructed that the defendant was bound to exercise towards him the utmost care and skill for his safety that prudent men would have exercised while engaged in the same business under the same and similar circumstances." As an abstract statement of the law, this instruction may be correct, but we do not so say. It uses the word "utmost" instead of the word "highest," as is usually used in instructions defining the measure of care required, but there may be but slight difference in the two words. The latter has the approval of the courts, and should be used. Considering this act of the court alone, i. e., the refusal of this instruction, when considered with the instructions given, we would not denominate it further than error, but not necessarily reversible error. By the first instruction for plaintiff the learned trial court had told the jury in effect that if the plaintiff had offered himself as a passenger on the car in question whilst the same was stopped for that purpose, and that defendant had not permitted the car to remain standing for a sufficient time to allow plaintiff to board the same, and further that, whilst he was in...