Baskett v. Metropolitan St. Ry. Co.

• Decision Date: 04 March 1907
• Parties: BASKETT v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

101 S.W. 138

123 Mo. A. 725

BASKETT v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

March 4, 1907.

Rehearing Denied April 1, 1907.

1. CARRIERS—STREET RAILWAYS—NEGLIGENCE —INJURIES TO PASSENGER—INSTRUCTIONS.

In an action against a street railway for injuries received by a passenger, by being thrown off the platform of one of defendant's cars by a sudden lurch, an instruction that it is not necessarily negligent for one to ride on the rear platform of a car, though the same is crowded; that if when crowded defendant's car stopped, and plaintiff and others boarded it as passengers without objection by defendant, plaintiff was not negligent in boarding the car and remaining on the platform thereof, unless the danger was so obvious that a reasonably prudent person would have restrained from so doing, and unless after boarding the car plaintiff failed to exercise due care, was not erroneous, as taking from the jury the question whether plaintiff was guilty of negligence in riding on an overcrowded car.

2. SAME—RIDING ON PLATFORM.

It is not negligence as a matter of law for one to board and ride on the platform of a car.

3. SAME.

It is not negligence as matter of law for one to board a street car without special invitation to do so.

4. EVIDENCE—JUDICIAL NOTICE.

The court takes judicial notice that in the operation of street cars they stop at street crossings for the purpose of taking on and letting off passengers, and that such stoppage is in the nature of a general invitation to all persons who desire passage to get aboard, whether the car be crowded or not.

5. CARRIERS—INJURIES TO PASSENGER—EVIDENCE.

In an action against a street railway for injuries received by a passenger through being thrown from the platform of a car by a sudden lurch, an instruction permitting a recovery on the ground of excessive speed when there was no allegation that the car was going at an excessive rate was not erroneous, the petition alleging generally that the injury resulted from defendant's negligence "in the construction, maintenance and operation of said line and car."

6. TRIAL—INSTRUCTIONS.

It is not error to refuse a requested instruction substantially covered by an instruction given.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Walter C. Baskett against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John H. Lucas and Frank G. Johnson, for appellant. Boyle, Guthrie & Smith, for respondent.

BROADDUS, P. J.

The plaintiff claims to have been injured on the 18th of January, 1905, as the result of the negligence of defendant while he was a passenger on one of the defendant's street cars, for which he claims damages. His evidence was that he boarded the car in question at Eighth and Walnut streets in Kansas City, Mo., and took a position on the rear platform, because the car was in a crowded condition; that the conductor made no objection to his riding on the platform; that after the car had gone about a half mile, and when it arrived at Woodland avenue—at which point there is a curve in the defendant's tracks—it suddenly lurched forward, which had the effect of throwing him off, and onto the street. His testimony was that he was exercising ordinary care. The defense was a general denial, and a plea of contributory negligence; the contention of defendant being that plaintiff was guilty of negligence in riding on a crowded car, whereas, he should have waited for another. The plaintiff recovered judgment for $1,250, and defendant appealed.

The question arising on the appeal is the alleged error of the court in giving and refusing instructions....