17 S.W. 494 (Mo. 1891), O'Connell v. St. Louis Cable & W. Ry. Co.

Citation:17 S.W. 494, 106 Mo. 482
Opinion Judge:Barclay, J.
Party Name:O'Connell v. The St. Louis Cable & Western Railway Company, Appellant
Attorney:Rochester Ford for appellant. A. R. Taylor for respondent.
Case Date:November 09, 1891
Court:Supreme Court of Missouri

Page 494

17 S.W. 494 (Mo. 1891)

106 Mo. 482



The St. Louis Cable & Western Railway Company, Appellant

Supreme Court of Missouri, First Division

November 9, 1891

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow, Judge.

This action is for personal injuries to plaintiff alleged to have been sustained by him while a passenger upon one of defendant's cable railway cars in St. Louis. The answer was a general denial.

Plaintiff's evidence tended to show that he hailed one of defendant's cars on Franklin avenue near the place of accident; that it stopped within ten or fifteen feet of the curve into Wash street, and, as plaintiff was proceeding to enter the car from the street, and had one foot on the car platform and the other on the lower step, the car suddenly started forward with a jerk, and he was thrown to the granite pavement between the car tracks; that he was picked up, put into the car, paid his fare, and afterwards went to the city hospital, where he remained two months.

Plaintiff was a laborer, and had earned at quarry work $ 1.75 to $ 2.50 per day. His injuries consisted of a fracture of the thigh bone at the hip joint. One of his medical attendants testified to his pain, and that in his opinion "the effect of the injury would be permanent, and would cause plaintiff to walk with a jerky motion or step." When plaintiff left the hospital he used crutches, and at the time of the trial had not discarded them. He testified that at that date (two years after the accident) he could not walk or go any distance without them, and still suffered pain from the injury.

The defendant's testimony tended to show that plaintiff had not been hurt on defendant's line, and that no such accident occurred at the time and place stated by him.

The court gave the following instructions for plaintiff, viz.: "1. If you find from the evidence that the plaintiff, on or about December 13, 1886, got upon the rear platform of one of the cars that was then being operated by defendant as a carrier of passengers, and that thereafter he was thrown from said platform and injured by reason of the omission of such care on the part of the operatives or employes of defendant in operating or moving said car (at the time and place of the injury), as is particularly defined in instruction, numbered 2; and if you further find from the evidence, that by reason of such want of care the car on which plaintiff was riding at the time was started by defendant's employes rapidly around a certain curve at the junction of Wash and Twenty-eighth streets before plaintiff had...

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