Hurley v. Metropolitan St. Ry. Co.

• Decision Date: 01 October 1906
• Citation: 96 S.W. 714,120 Mo. App. 262
• Parties: HURLEY v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

96 S.W. 714

120 Mo. App. 262

HURLEY v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

October 1, 1906.

1. CARRIERS—STREET RAILROADS—PREMATURE START—DUTY OF CONDUCTOR.

It is the duty of a street car conductor, after the car has stopped to permit passengers to alight, to know before giving the signal to start that no one is in the act of getting on or off the car, and it is no excuse for his failure so to do that he is busy with other matters within the car.

2. SAME.

A passenger on a street car is entitled to assume that the conductor will not start the car while the passenger is in the act of alighting, though he sees the conductor's arm raised toward the bell cord.

3. SAME — DILIGENCE IN ALIGHTING — EVIDENCE.

Plaintiff had been riding in the vestibule of defendant's street car, which was full of people and tool boxes. The car came to a full stop at the point where plaintiff desired to alight, and as soon as the car stopped he endeavored to get to the steps as fast as he could. There were others ahead of him, whom he followed in his endeavor to alight as soon as possible, and as soon as the man ahead of him got off he stepped down, and while in the act of doing so was suddenly thrown to the street by the starting of the car. Held, that plaintiff exercised reasonable dispatch in endeavoring to alight.

4. SAME—INSTRUCTIONS.

In an action for injuries to plaintiff while alighting from a street car, the court charged that if plaintiff was a passenger, and when the car stopped plaintiff undertook to alight, and while in the act of stepping from the platform, and before he had time to alight by using reasonable diligence and exercising ordinary care, the car was suddenly started by defendant's servants, whereby plaintiff was thrown to the pavement and injured, and defendant's servants failed to use the utmost skill and care which prudent men would use under similar circumstances to see that plaintiff had safely alighted from the car or was in a perilous position, plaintiff was entitled to recover. Held, that such instruction was not objectionable as eliminating the question of plaintiff's contributory negligence.

5. SAME—MISLEADING INSTRUCTIONS—MODIFICATION.

In an action for injuries to a passenger while alighting from a street car, defendant requested an instruction that plaintiff had no right to alight or attempt to alight from the car after it had started, or while it was in motion, and, if he did so, he assumed the risk of injury; that if, after the car had started or while it was in motion, plaintiff attempted to get off and was thrown down by the motion of the car, then his injuries, if any, were caused by his own fault, and the verdict should be for defendant. Held, that the instruction as requested was misleading, and was properly modified by requiring that plaintiff must have been thrown down only by the motion of the car, "and without any negligence on the part of defendant's servants in charge thereof."

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by John F. Hurley against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas and Frank G. Johnson, for appellant. L. A. Laughlin, for respondent.

BROADDUS, P. J.

This is an action for damages for personal injuries received by plaintiff while alighting from defendant's street car. On the 2d of November, 1903, the plaintiff was a passenger on defendant's south-bound Vine Street car, his destination being the intersection of Thirty-Third street and Woodland avenue. The car stopped on the south side of Thirty-Third street, the usual place for stopping. The plaintiff's evidence tends to show that before the car reached the point mentioned he called out to the conductor his destination; that several passengers got off when the car stopped; that plaintiff followed immediately after a man ahead of him, but, as he was stepping down from the platform, the car started and threw him onto the street pavement, the fall resulting in breaking the humerus of his right arm at the shoulder joint.

The defendant contends that the plaintiff was not entitled to recover because of his own negligence; that the car remained stationary for a sufficient length of time for a number of other passengers to get off, including a colored woman who was up in the body of the car and had to work her way out to the vestibule, where plaintiff was standing, to get off; that the conductor, who was in the body of the car attending to his duties, after he saw the colored woman get off, and not seeing any others attempting to get off, gave the signal to start when plaintiff was in the vestibule and before he was in the act of getting off; and that plaintiff saw the conductor's arm up in the act of ringing the bell before he started to leave the car. In order to know whether defendant's contention is good, it becomes necessary to examine more in detail the evidence of the plaintiff. Plaintiff testified that when the car was approaching Thirty-Third street he called out the street twice to the conductor, in a voice loud enough for him to hear the call; that he was riding in the rear vestibule of the car, which was full of people and tool boxes; that the car came to a full stop; that as soon as the car had passed Linwood Boulevard (which was north of Thirty-Third street) he endeavored to work his way through the mass of tool boxes piled on the floor, so as to be close to the steps when the car stopped, and as soon as the car stopped he endeavored to get to the steps to get off just as fast as he could; that there were others ahead of him getting off; that he followed the person ahead of him just as close as he could; that as he went by the door of the car he saw a blue uniformed arm up, which he judged to be that of the conductor; that he got to the first step, and as soon as the man ahead got off he stepped down on the other one, and while he was in the act of stepping off the car started suddenly and...