30 S.W. 331 (Mo. 1895), Schaefer v. St. Louis & Suburban Railway Company

Citation:30 S.W. 331, 128 Mo. 64
Opinion Judge:Robinson, J.
Party Name:Schaefer, Appellant, v. St. Louis & Suburban Railway Company
Attorney:Carlisle & Ottofy for appellant. Lee & McKeighan and Montague Lyon for respondent.
Case Date:March 26, 1895
Court:Supreme Court of Missouri
 
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Page 331

30 S.W. 331 (Mo. 1895)

128 Mo. 64

Schaefer, Appellant,

v.

St. Louis & Suburban Railway Company

Supreme Court of Missouri, First Division

March 26, 1895

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel, Judge.

Affirmed.

Carlisle & Ottofy for appellant.

(1) Refused instruction number 1 for plaintiff should have been given. The plaintiff was a passenger, even before he stepped upon the car, or after he left it. Buck v. Railroad, 108 Mo. 185; Dougherty v. Railroad, 9 Mo.App. 482, 485, and cases there cited; Burbridge v. Railroad, 36 Mo.App. 677. First. The court fails to define what constitutes a passenger; although it directs the jury to determine whether or not plaintiff was a passenger. Second. Being a passenger the sudden starting of the car constituted negligence. Buck v. Railroad, 108 Mo. 185; Wyatt v. Railroad, 55 Mo. 485; Dougherty v. Railroad, 81 Mo. 329, s. c., 97 Mo. 647. (2) Refused instruction number 2 should have been given. When plaintiff makes out a prima facie case of negligence against a carrier the burden of proof is thrown upon him to show either first, that the utmost human care was exercised at the time, or, second, that the accident occurred by reason of some cause beyond the carrier's control. Instruction number 3 given for defendant is not the law. Dougherty v. Railroad, 9 Mo.App. 482; s. c., 81 Mo. 329; s. c., 97 Mo. 667; Coudy v. Railroad, 13 Mo.App. 588; s. c., 85 Mo. 85; Hipsley v. Railroad, 88 Mo. 352; Furnish v. Railroad, 102 Mo. 452, and cases cited, p. 453; Roberts v. Johnson, 58 N.Y. 617. (3) Instruction number 2, given for defendant is not the law. It is not negligence to board a slowly moving car at a platform. Fulks v. Railroad, 111 Mo. 335, and cases cited on p. 340; Duncan v. Railroad, 48 Mo.App. 662. First. The instruction assumes a fact not in evidence. There is no evidence to justify the giving of this instruction. There is no testimony that plaintiff attempted to board a moving car. (4) The verdict is against the evidence and the weight thereof and is the result of passion, bias and prejudice on the part of the jury. Their conduct throughout the trial shows it. Hipsley v. Railroad, 88 Mo. 354; Avery v. Fitzgerald, 94 Mo. 216; Lionberger v. Pohlman, 16 Mo.App. 398; Spohn v. Railroad, 87 Mo. 84; Empey v. Railroad, 45 Mo.App. 425. (5) Counsel for defendant, in his argument, made remarks unwarranted by the evidence and prejudicial to plaintiff's case. Brown v. Railroad, 66 Mo. 588; Koch v. Hebel, 32 Mo.App. 114; Wilburn v. Railroad, 48 Mo.App. 231. (6) Instruction number 4 given for defendant is improper. There is no evidence in the record to support it. (7) The instructions given are conflicting and this is error. Instruction number 2 given for plaintiff requires the jury to find that he was a passenger. Instruction number 3 for plaintiff and all the instructions for defendant eliminate that question from the case. Bluedorn v. Railroad, 108 Mo. 450; Reardon v. Railroad, 114 Mo. 405; State v. Cable, 117 Mo. 386.

Lee & McKeighan and Montague Lyon for respondent.

(1) There was no error in refusing plaintiff's refused instruction number 1, for the reason that, even though the instruction may contain a correct abstract proposition of law, there is no evidence in the case to support the giving of the instruction as offered by the plaintiff, and, if given, would have been misleading; and, moreover, the instructions given in the case fully and fairly presented the issues to the jury, and the refusal of said instruction could not have been prejudicial to the plaintiff. Bergeman v. Railroad, 104 Mo. 77; Schroeder v. Railroad, 108 Mo. 322; Fulks v. Railroad, 111 Mo. 335; Payne v. Railroad, 112 Mo. 6; Nicholson v. Golden, 27 Mo.App. 132. (2) Plaintiff's refused instruction number 2 was properly refused, because it undertakes to tell the jury that the mere sudden starting of the car while the plaintiff was a passenger, is presumptive evidence of negligence on the part of the defendant, and that the burden of proof is upon the the defendant to exonerate itself from such negligence; and because the instruction does not contain the element of the unusual or violent character of the starting of the car, which was necessary to raise the presumption that the...

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