Buck v. People's Street-Railway & Electric Light & P. Co.

• Decision Date: 08 February 1892
• Citation: 108 Mo. 179,18 S.W. 1090
• Parties: BUCK v. PEOPLE'S STREET-RAILWAY & ELECTRIC LIGHT & POWER CO.
• Court: Missouri Supreme Court

18 S.W. 1090

108 Mo. 179

BUCK v. PEOPLE'S STREET-RAILWAY & ELECTRIC LIGHT & POWER CO.

Supreme Court of Missouri, Division No. 1.

February 8, 1892.

STREET RAILWAYS — NEGLIGENCE — INJURY TO FREE PASSENGER — DAMAGES — INSTRUCTIONS.

1. Where a petition charged negligence of the driver of a street-car in prematurely starting it while plaintiff was alighting, and the evidence supported the charge, the fact that a defective brake contributed to the injury will not defeat a recovery, and constitutes no variance.

2. A small boy became a free passenger on defendant's street-car, by consent of the driver in charge. Held, that defendant became bound to exercise towards him the same care as towards other passengers.

3. In determining whether a cause should go to the jury, the court must give plaintiff the benefit of the most favorable view of his facts, and of every reasonable inference therefrom.

4. A too general instruction on the measure of damages is harmless error, if accompanied by a full and correct one on the same subject.

5. Courts should not unnecessarily multiply instructions. It is not error to refuse those of which the essential principles have been already given.

6. A boy received injuries from having been run over by a car, with the ordinary consequences of pain, etc., and, moreover, a permanent limp and incapacity to straighten his leg. Held, $3,000 damages were not excessive.

7. Under the Missouri practice act, (Rev. St. 1889, § 2188,) held, by BRACE and BARCLAY, JJ., that, where an instruction is first asked during the closing argument to the jury, it rests in the sound discretion of the court to give or refuse it; but held, contra, by SHERWOOD, C. J., and BLACK, J., that, if correct, it should be given then as of right.

(Syllabus by the Judge.)

Appeal from circuit court, Buchanan county; O. M. SPENCER, Judge.

Action by Orley Buck, an infant, by Rufus D. Buck, his next friend, against the People's Street-Railway & Electric Light & Power Company for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by BARCLAY, J.:

Action for personal injuries to plaintiff by defendant as a passenger carrier. Judgment for plaintiff. Defendant appealed. The defendant's request for instruction No. 1, (mentioned in the opinion,) as originally asked, read as shown below; but the court erased the words now inclosed by brackets, added in their stead those indicated by italics, and then gave the instruction so modified: "(1) If the jury believe from the evidence that Orley Buck got onto defendant's car to ride thereon, and that the driver of said car stopped said car at the place where said Orley Buck wanted to get off, and that the driver then set the brake of said car, and said Orley Buck then got off of said car while it was still standing, but continued to hold to the rod thereof with one or both hands, and while he was so holding to said rod the brake slipped off its fastening on account of being defective, and the car, in consequence thereof, then started, or in consequence thereof was started while said Orley Buck was still holding to said rod, and said Orley Buck was hurt, by and on account of the fact that the car was started [in the manner aforesaid,] by reason solely of the defective brake, and without any want of care or negligence on the part of the servant in running and operating said car, then the jury will find for the defendant." Another refused request of defendant, referred to by the court, is as follows: "No. 7. The court instructs the jury that if they believe from the evidence that plaintiff was riding on defendant's car without paying any fare for riding, and that defendant's driver stopped said car for him to get off, and that he did get off, and that while he was holding to the rod of said car the brake slipped by reason of being defective, and the mules or car started in consequence of the slipping of the brake, and that plaintiff was hurt in consequence of the car or mules starting on, in said manner, the plaintiff cannot recover in the case."

D. D. Burnes and Jas. W. Boyd, for appellant. Ryan & Macdonald, for respondent.

BARCLAY, J., (after stating the facts.)

The plaintiff was a small boy at the time of the injury that forms the basis of this action. The proceeding was begun, in his interest, by his father as next friend, and after issues joined a trial was had before Judge SPENCER and a jury. The plaintiff's testimony tends to show that he got aboard a street-car of defendant's line in St. Joseph to take a ride with the driver, who was in sole charge, one afternoon in April, 1889. Nobody else was on the car. Plaintiff took a position on the front platform by the driver. When they reached a point near the boy's home, he expressed a wish to get off. The driver stopped the car, and took plaintiff by the arm to help him. As he was about reaching the ground, but had not fully cleared the car, the latter suddenly started, throwing the boy down so that the car ran over his leg. His hand was yet on the iron rail by the side of the platform when the forward jerk took place. He then tried, by catching hold with both hands, to keep from under the car; but his strength gave out, and, when he let go, the front wheel ran over him before the team of mules could be stopped.

1. The first objection to the rulings of the trial court refers to the sufficiency of the petition. It is questioned as stating a different sort of negligence from that shown by the evidence. The petition contains two counts. In the first it is charged that defendant's employe, in control of the car, "negligently and unlawfully permitted him, the said plaintiff, to alight from the front platform of said car, so under his charge, while the same was in motion, and that, while in the act of so alighting from said car as aforesaid, the said servant * * * of the defendant * * * carelessly and negligently, and without any fault of plaintiff, ran said car upon and against the plaintiff, and knocked him down, and ran the wheels of said car over, upon, and across the right leg of plaintiff," etc. In the second count it is alleged that "the plaintiff, with the knowledge, consent, and permission of the * * * employe of defendant, so in charge and control of said car as aforesaid, attempted to alight from the front platform of said car; but, before plaintiff had time and opportunity to safely alight therefrom, the said employe of defendant, so in charge of said car as aforesaid, suddenly, carelessly, and negligently started said car forward, and carelessly and negligently, and without fault or negligence upon the part of plaintiff, caused said car to run upon and against the plaintiff, knocking him down, and carelessly and negligently ran the wheels of said car over, upon, and across the right leg of plaintiff," etc. Defendant claims that these specifications of negligence are not sustained by the evidence, inasmuch as (in addition to the facts already stated) it appeared that the brake on the front platform of the car was not in good order. The contention is that the injury is attributable, not to the negligence alleged of the driver, but to the defective brake, which is not complained of in the pleading. The driver had knowledge of the condition of the brake. It would not catch and stand fast, and thus hold the car, unless continually held by the person in charge. On the occasion of this mishap, as the driver admitted, the moment he "let go of the brake it [the car] started; the brake flew loose." He then was in the act of helping the boy down the step. The evidence, we think, fairly justified an inference of negligence on the driver's part in letting go the brake so soon, in view of its condition, and that the injury resulted from that negligence. The court closely confined the scope of liability to the case made by the petition, and instructed the jury expressly that plaintiff could not recover "on account of any injury which may have happened to him solely through, by, or on account of any defect in the brake of said car." Whether this was an entirely accurate statement of law for this case we need not stop to consider. Plaintiff did not except to it. The defendant asked and obtained it from the court, and it certainly presented a view of the law quite as favorable to defendant as it was entitled to on this part of the case.

2. Defendant next insists that the cause should have been taken from the jury, and that the facts disclose no ground for plaintiff's judgment. The plaintiff got on the car a few blocks from his home. He knew the driver, and asked him for a ride. The driver consented, stopped the car, and took him aboard. He paid no fare. The immediate circumstances of his accident, in getting off, have been already stated. Plaintiff was lawfully upon the...