Blair v. Mound City Ry. Co.

• Decision Date: 22 May 1888
• Parties: CAROLINE E. BLAIR, Respondent, v. MOUND CITY RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

31 Mo.App. 224

CAROLINE E. BLAIR, Respondent, v. MOUND CITY RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

May 22, 1888

Appeal from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Reversed and remanded.

HITCHCOCK MADILL & FINKELNBURG, for the appellant: The court erred in giving the first instruction asked by plaintiff. In this instruction certain portions of plaintiff's evidence are selected and commented on, and the jury are told that if true they constitute diligence on the part of the plaintiff and negligence on the part of defendant. Singling out certain facts and instructing the jury as to the effect to be given them is erroneous. Clay v. Railroad, 17 Mo.App. 629; Pourcelly v. Lewis, 8 Mo.App. 593; Weil v Schwartz, 21 Mo.App. 372, 382; Jones v. Jones, 57 Mo. 138; Anderson v. Kincheloe, 30 Mo. 520; Fine v. Public Schools, 39 Mo. 59, 67; Rose v Spies, 44 Mo. 20; Spohn v. Railroad, 87 Mo. 74; Judd v. Railroad, 23 Mo.App. 57; Miller v. Marks, 20 Mo.App. 369. The first instruction for plaintiff is also erroneous in withdrawing from the jury the question of negligence and diligence. Where the facts are in dispute or the inferences which may be drawn from them are doubtful, the jury must decide. Barton v. Railroad, 52 Mo. 253; Meyer v. Railroad, 40 Mo. 151; Kelly v. Railroad, 70 Mo. 604, 608. The court erred in refusing defendant's instruction on the subject of mere accident or misadventure. Sawyer v. Railroad, 37 Mo. 240, 260, 262; Frick v. Railroad, 75 Mo. 542; 1 Thompson on Negligence, 61, 338; 2 Ibid. 1234.

COLLINS & JAMISON, for the respondent: The trial court placed the law fairly before the jury in a few plain, forcible, and pointed instructions. It is not proper to single out one instruction and to complain of it as erroneous; all of the instructions are to be considered in their combination and entirety, and not as though each separate instruction was intended to embody the whole law of the case. Talbot v. Mearus, 21 Mo. 427; McKeon v. Railroad, 43 Mo. 405. The trial court committed no error in refusing defendant's instruction on the subject of mere accident or misadventure, because there was no evidence introduced or offered tending to show that the injury was caused by mere accident or misadventure, and it is error to give an instruction as to a material issue when there is no evidence on which to base such an instruction. White v. Chaney, 20 Mo.App. 389; Bank v. Armstrong, 62 Mo. 59.

OPINION

PEERS J.

The plaintiff in this case is an aged negro woman, who sues for damages for personal injuries claimed to have been sustained by her through the negligence of the defendant company.

In her petition she alleges that she was a passenger on one of defendant's cars; that the car was stopped for the purpose of permitting her to alight therefrom; that while in the act of getting off the car, using due diligence and care, the agents, servants, and employes of the defendant in charge of the car, negligently and carelessly and without giving plaintiff sufficient time to alight, put the car in motion, whereby she was thrown down upon the street, her leg and thigh fractured and broken in three places, and otherwise greatly injured and bruised. She asks for ten thousand dollars damages.

The answer is a general denial.

The case was tried before a jury which resulted in a verdict and judgment for plaintiff for five hundred dollars. After an unsuccessful attempt by motion to set aside the verdict and for a new trial, the case comes here by appeal.

The admission and rejection of testimony and the giving and refusing of instructions are assigned as error upon which we are asked to reverse the judgment.

Like almost every case of this character the evidence presented various disputed questions of fact for the jury, viz.: Whether the alleged accident occurred upon one of the defendant's cars or upon the car of another railway company operating cars on the same track; whether the alleged accident was caused by any negligence on the part of defendant's agents or by the intervention of a stranger in ringing the bell as a signal for the car to start before plaintiff had fully alighted from the step of the rear platform; whether the injury was the result of a mere accident for which neither party was to blame, or whether plaintiff contributed thereto by her own negligence in endeavoring to leave the car while in motion. The evidence tended to show that the accident was not made known to the employe of the defendant in charge of the car, and that defendant had no knowledge of the matter until suit was brought; that the cars operated by the defendant were small cars in charge of a driver without a conductor, that the cars operated by the other street railway company were double platform cars and in charge of a driver and conductor. The evidence further tended to show that the defendant had a somewhat deformed limb before the accident occurred, one leg being a little smaller and the foot averted; that the injuries resulting from the accident were contusions and bruises; the surgeon who testified declined to say that there had been any fractures, but that a fracture was suspected when she was brought to the hospital, and that her limb was put into a splint as for a fracture. She remained at the hospital three months and was then transferred to the poorhouse, and from thence to her home in the city. It was further shown that the plaintiff went on crutches for a long time after the accident.

I.

A careful inspection of the record does not justify us in interfering with the judgment on account of the testimony, nor is the same insisted on by defendant. The evidence was very conflicting, but the jury having found the issues for the plaintiff thereon, we will not disturb their finding on that account.

II.

The plaintiff asked, and the court gave, the following instructions, against the objection of defendant.

" 1. The court instructs the jury that if they believe, from the evidence, that, on the eighth day of September, 1885, the defendant was a street railway company, engaged in the business of transporting passengers, for hire, over certain streets of the city of St. Louis, then it was the duty of defendant's servants and employes on the occasion in question, if they had stopped the car to let passengers get off, to stop the car long enough for plaintiff, by the exercise of ordinary care and diligence, considering her age sex, and apparent physical condition, to get off the car safely before it was started, or suffered to start, and if the jury further believe from the evidence, that on said eighth day of September, 1885, the plaintiff was a passenger on a car operated by the defendant, its servants, or employes, and that plaintiff, as soon as said car stopped, for the purpose of permitting passengers to alight therefrom, got up from her seat and walked at once, as fast as she reasonably could, out on the platform and down the step on the car without stopping on the way, then she did all the law required of her, so far as diligence on her part, in getting off the car is concerned, and if, under such circumstances, the defendant's servants or employes started the car while she was proceeding to alight, still using due and reasonable haste in getting off the car, such starting of said car was an act of negligence on the part of defendant, and a breach of its duty to plaintiff as a passenger on its road."

" 2. Although the jury may believe, from the evidence, that on the occasion in question the car had started when the plaintiff attempted to alight, yet, if the jury believe, from the evidence, that the car had not stopped a reasonable length of time for her to get off, using reasonable diligence, considering her age, sex, and apparent physical condition, and that the motion of the car was yet slight, or almost imperceptible, when she attempted to step off, still it is for the jury to determine, under all the circumstances of the case, and the other instructions of the court, whether plaintiff was guilty...