Sterrett v. Metropolitan Street Railway Co.

Citation123 S.W. 877,225 Mo. 99
PartiesCLARA STERRETT, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY
Decision Date04 January 1910
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. -- Hon. Wm. B. Teasdale, Judge.

Affirmed.

Theoph. L. Carns for appellant.

(1) Where, in an action for damages, the plaintiff's petition states: 1st, That she was injured by the starting of defendant's car while she was in the act of boarding the same; 2d, That the start of the car was so sudden as to throw her down; and, 3d, That defendant's servants knew, or by diligence could have known, that she was so in the act of boarding the car; the first charge is the essential and predicative one, and plaintiff is entitled to recover upon establishing that charge alone; while the second and third charges are non-essential particulars, and may be disregarded as superfluous. Nelson v. Railroad, 113 Mo.App. 702; Ridenour v. Railroad, 102 Mo. 283; Green v Railroad, 122 Mo.App. 650; Stoddard v Railroad, 105 Mo.App. 512; Barth v. Railroad, 142 Mo. 535; Alten v. Railroad, 133 Mo.App. 430; Ratcliffe v. Railroad, 90 Mo. 127. (2) Starting a car while a passenger (a woman with a basket in each hand) is on the step and in the act of stepping upon the platform, is negligence per se; and the suddenness of the start is unimportant. Likewise it is unimportant whether or not the defendant's servants know, or by diligence might know that the passenger is in the act of boarding the car. Barth v. Railroad, supra; Stoddard v. Railroad, supra; Murphy v. Railroad, 125 Mo.App. 275; Bowling v. Railroad, 125 Mo.App. 419; Nelson v. Railroad, supra; Ridenour v. Railroad, supra; Green v. Railroad, supra; Alten v. Railroad, 133 Mo.App. 430. (3) And, in such a case, instructions which prohibit a finding for the plaintiff upon proof of the fact that the car was started while she was on the step and in the act of stepping upon the platform, and requiring the further finding that the start of the car was sudden, or that defendant's servants knew or by diligence could have known that plaintiff was in such position, are erroneous. Chadwick v. Railroad, 195 Mo. 517; Foland v. Railroad, 119 Mo.App. 284; Nelson v. Railroad, 113 Mo.App. 702; Barth v. Railroad, 142 Mo. 549; Devoy v. Railroad, 192 Mo. 209. (4) An instruction to the jury in an action for damages sustained by the plaintiff while a passenger on one of defendant's cars, to the effect that the burden of proving the negligence charged rests upon the plaintiff throughout the entire trial, is erroneous. Olson v. Railroad, 152 Mo. 426; Och v. Railroad, 130 Mo. 51; Wilkerson v. Railroad, 26 Mo.App. 152. (5) And, in such a case an instruction to find for the defendant, "unless you believe and find from the evidence . . . that the plaintiff has proven by a preponderance of the credible evidence . . . to your satisfaction," the essential acts of negligence, is erroneous. Grant v. Rowe, 83 Mo.App. 560; Murray v. Railroad, 101 Mo. 236; Williams v. Watson, 34 Mo. 95; Gardner v. Railroad, 223 Mo. 389.

John H. Lucas and Ben. T. Hardin for respondent.

(1) This court is relieved of any consideration of instructions 7 and 8, etc., for the reason that there is not the slightest reference to them in the motion for a new trial. Coffey v. Carthage, 200 Mo. 616; State v. Miles, 199 Mo. 530; Eppstein v. Railroad, 197 Mo. 720; State v. Richardson, 194 Mo. 336; State v. Grant, 194 Mo. 364; Hoke v. Central Farmers' Club, 194 Mo. 584; Carpenter v. Roth, 192 Mo. 658; State v. Diltz, 191 Mo. 672; State v. Eaton, 191 Mo. 151; St. Louis v. Lawton, 189 Mo. 474; State v. Atchley, 186 Mo. 196; Baker v. Railroad, 107 Mo. 230; State ex rel. v. Turner, 113 Mo.App. 53. (2) The instructions asked by plaintiff and given as modified by the court, and those given for defendant, were correct declarations of law; they were based upon the allegations in plaintiff's petition. The allegations of negligence were specifically set forth in the petition, and it was proper that the instructions should be based on such allegations, and it would have been reversible error not to have done so. Black v. Railroad, 217 Mo. 672; Wojlylak v. Coal Co., 188 Mo. 260; Hamilton v. Railroad, 114 Mo.App. 513; Wilmett v. Railroad, 106 Mo. 535; Bank v. Armstrong, 62 Mo. 59; Raysdom v. Trumbo, 52 Mo. 35; Bank v. Murdock, 62 Mo. 70; Allen v. Railroad, 183 Mo. 411; Hemphill v. Kansas City, 100 Mo.App. 563. (3) There was no error in giving instruction 2, for defendant. It is, and always has been the law, and appellant's counsel is in error in his claim that after plaintiff showed that she was injured while a passenger on defendant's car, the burden shifted. The doctrine of res ipsa loquitur does not apply in a case where, as here, specific acts of negligence are pleaded. Davidson v. Railroad, 211 Mo. 362; Kirkpatrick v. Railroad, 211 Mo. 68; Roscoe v. Railroad, 202 Mo. 424; Orcutt v. Century Building Co., 201 Mo. 424; McGrath v. Railroad, 197 Mo. 97.

OPINION

GRAVES, J.

Plaintiff alleging herself to be a passenger of the defendant brings this suit to recover damages for an injury to her knee, which she claims was occasioned by a fall in an attempt to board one of defendant's cars. She claims to have been carrying a basket of hand-painted china in each hand and to have mounted the step of the car while it was yet standing, but that before she could step to the platform, and whilst she was in the act of stepping from the step to the platform, the car suddenly started and she was thrown down on the platform and received the injury complained of in this action. The place is located at Fifteenth street and Troost avenue in Kansas City, where defendant maintains a street railway system. The important parts of the petition are couched in this language:

"She went to the corner of said Fifteenth street and Troost avenue where the defendant at all times stopped its cars for the purpose of receiving and discharging passengers, and when said car approached her from the west, she signaled the defendant's servants in charge of said car to stop in order that she might board said car. That defendant's said servants saw this plaintiff and stopped said car in order that she might board the same; and that plaintiff, with due diligence and care, proceeded to board said car in the usual manner. That while plaintiff was in the act of boarding said car, and immediately after she had stepped upon the first step of said car and was in the act of stepping upon the platform of the same, and before she had sufficient time to get upon the platform, the servants and employees of the defendant in charge of said car, negligently started said car forward suddenly and at a rapid rate of speed and thereby threw plaintiff forward with great force and thus caused her to fall upon said platform, and that in so doing, she struck her left knee upon said platform with great force and violence, and thereby greatly bruised and sprained said knee and the bones, ligaments, cartilages and membranes thereof.

"Plaintiff states that her said injuries have resulted from the negligence of the defendant's servants in starting said car before plaintiff had time to board the same in safety, and in starting the same so suddenly and rapidly as to throw plaintiff upon said platform as aforesaid; and that said servants knew that plaintiff was in the act of boarding said car, at said time and place, or by the exercise of reasonable diligence could have known the same."

Damages were alleged to be in the sum of fifteen thousand dollars.

For answer the defendant interposed a general denial and a plea of contributory negligence. Reply was a denial of the new matter in the answer. The jury found a verdict for the defendant, upon which judgment was entered and from this judgment the plaintiff has appealed to this court.

Plaintiff testified in her own behalf and her testimony meets the allegations of her petition, save and except that her statement is somewhat conflicting as to any sudden and rapid starting of the car, as will be shown when that point is reached. She says the motorman saw her as she started to get on the car but did not see her as she fell, and that after the fall she was helped up by two men, neither of whom was at the trial. She says that she made no outcry and went on home, without notifying any of the train men. This she did, as she avers, because she did not think she was injured much. It also appears that some thirteen days after the accident the defendant mailed to plaintiff a blank proof of loss. This she filled up at her own home and mailed to the company. In that she only claimed as damages and loss the broken dishes, which she valued at $ 30. In this written report she says the car stopped, but nothing about the alleged fact that it stopped upon her signal.

The defendant by its evidence took the position that no accident ever occurred. To this end they put on all the motormen who passed over the line anyway near the time of the alleged accident, and none of them ever saw plaintiff or heard of her alleged fall and injury. From the aunt of plaintiff it is made to appear that within a few days after the accident, she called at the office of the company and notified them of the breaking of the china and that she was the owner thereof. It was perhaps through this information that the company came to send the blank to plaintiff for her claim. Plaintiff's testimony, shaken in many respects, stands alone upon the question of her attempting to board the train and upon the question of whether or not she was injured by defendant or its servants. From her testimony it would appear that the car was fairly filled with passengers. She produces no one to corroborate her, and defendant, not notified at the time of the injury, as stated...

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