Bell v. Central Electric Railway Company

• Decision Date: 20 May 1907
• Parties: SARAH BELL, Respondent, v. CENTRAL ELECTRIC RAILWAY COMPANY, Appellant
• Court: Kansas Court of Appeals

103 S.W. 144

125 Mo.App. 660

SARAH BELL, Respondent, v. CENTRAL ELECTRIC RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 20, 1907

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

AFFIRMED.

Judgment affirmed.

John H Lucas, Charles A. Loomis and Ben F. White for appellant.

(1) The court erred in giving instruction 2 as requested by plaintiff. This was not a proper case for the application of the rule res ipsa loquitur. Plaintiff was bound by the allegations of negligence in her petition and must recover for those or not at all. Thompson on Negligence, sec. 7637; Thomas v. Railroad, 148 Pa. ___, 15 L. R. A. 416; Keller v. Railroad, 149 Pa. 65; Barnard v Railroad, 60 Md. 555; Railroad v. State Savington, 71 Md. 599; Ely v. Railroad, 77 Mo. 34; Waldhier v. Railroad, 71 Mo. 514; Edens v. Railroad, 72 Mo. 212; Bullene v. Smith, 73 Mo. 151; Yarnell v. Railroad, 113 Mo. 570; Hite v. Railroad, 130 Mo. 132; McManamee v. Railroad, 135 Mo. 447; Watson v. Railroad, 133 Mo. 246; Feary v. Railroad, 162 Mo. 75; Price v. Railroad, 72 Mo. 508; Leslie v. Railroad, 88 Mo. 50; Bunyan v. Railroad, 127 Mo. 12; Bartley v. Railroad, 148 Mo. 124; Stevenson v. Hancock, 72 Mo. 612; Price v. Railroad, 77 Mo. 508; Dougherty v. Railroad, 97 Mo. 647. (2) The court erred in giving instruction numbered 10 given at the request of plaintiff. It authorized the jury to find, as an element of damages, future pain and suffering, when there was no allegation in the petition directly charging future pain and suffering, or alleging damages therefor. This was error. (3) The court erred in refusing defendant's instructions numbered A, B and C. They properly declare the law, and were authorized by the evidence.

Jamison, Elliott & Ostergard for respondent.

(1) The care which motorman and conductors of street cars must exercise toward passengers in alighting from cars is that of the highest practical degree. It is no excuse that the conductor was inside the car engaged in other duties and some one, without his consent or direction, tampered with the signal bell. Hurley v. Railroad, 96 S.W. 714; McCaffery v. Railroad, 90 S.W. 818; Becker v. Building Co., 174 Mo. 250; Reagan v. Transit Co., 180 Mo. 142; Abbitt v. Transit Co., 106 Mo.App. 644. (2) When defendant assumes to disprove plaintiff's prima facie case, not by directly negativing plaintiff's evidence, but by affirming and attempting to prove some prior act of plaintiff, which, if true, makes it impossible that plaintiff's prima facie case, as made, can be true, defendant then assumes the burden of the evidence in attempting to prove such affirmative fact. Livery Co. v. McKelvey, 55 Mo.App. 242; Grover v. Henderson, 120 Mo. 382; Swigert v. Railroad, 75 Mo. 480; Kennedy v. Transit Co., 103 Mo.App. 5; Reagan v. Transit Co., 180 Mo. 144. (3) The instructions must be taken and considered together as a whole. Liese v. Meyer, 143 Mo. 560; Kennedy v. Transit Co., 103 Mo.App. 5. (4) Where instructions taken as a whole present the facts properly to the jury, they should be given, although one of them standing alone would be erroneous. Abbitt v. Transit Co., 106 Mo.App. 645; Whalen v. Railroad, 60 Mo. 327. (5) The objection to the giving of instruction 10 is not supported by any authority, for the very apparent reason that no such authority can be found. (6) Appellant's refused instructions numbered B and C are covered by appellant's instruction 8 as modified by the court and given.

OPINION

JOHNSON, J.

Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff recovered judgment in the sum of eight hundred dollars and defendant appealed. The injury occurred in the afternoon of March 26, 1904. Plaintiff was a passenger on an electric car operated by defendant on one of its lines of street railway in Kansas City. The car was running eastward on Independence avenue and as it approached Charlotte street, a regular stopping place, plaintiff gave the signal to stop, as she desired to alight at that point. The evidence introduced by plaintiff tends to show that in obedience to the signal the car came to a full stop at the east line of Charlotte street, its accustomed stopping place, and plaintiff left her seat and proceeded to depart. Two other passengers preceded her, who left the car in safety, but plaintiff, while in the act of stepping from the last step to the street, was violently thrown to the pavement by the sudden starting of the car, and injured. During the time the car was stationary, the conductor remained in the front part thereof, where he was engaged in collecting fares. The evidence offered by defendant is to the effect that when the signal to stop was given, the motorman reduced speed and the car was running at the rate of two or three miles per hour when it reached the west line of Charlotte street; that plaintiff attempted to alight at that point and that her fall was caused by the manner in which the attempt was made.

The negligence alleged in the petition is that while plaintiff "was proceeding with due care and diligence to alight from said car, and while she had one foot on the step of said car and her other foot extended to step to the street from said car step, the trainmen in charge of said car who were then and there the agents, servants and employees of defendant, carelessly and negligently caused said car to start forward while plaintiff was in the aforesaid dangerous position in stepping from said car step, and before plaintiff had a reasonable time to alight from said car, and plaintiff was thereby thrown from said car step . . . that said trainmen, agents and employees of defendant then and there knew of plaintiff's dangerous position in stepping from said car step and of the lack of reasonable time given her to alight safely from said car, or by the exercise of reasonable care and diligence in their duties as such trainmen in then and there operating said car, could have known of the same in time to have averted plaintiff's injury. "

At the request of plaintiff, the court instructed the jury, in part, as follows: 1. "The jury are instructed that if you believe and find from the evidence that plaintiff was a passenger on one of defendant's trolley street cars in charge of, and being operated by defendant's trainmen, on or about March 26, 1904, that said car at that time was running east on Independence avenue from Grand avenue in Kansas City, Missouri, and that, at the intersection of Charlotte street with said Independence avenue, said car was stopped by defendant's trainmen in charge thereof for the purpose of allowing passengers thereon to alight therefrom, and that while said car was then and there stopped for said purpose, plaintiff attempted to alight from said car and that she was using reasonable care and diligence in so doing, and that, before she had had a reasonable time to safely alight from said car, and while she had one foot on the car step and her other foot extended to step to the street, and that while defendant's trainmen, in charge of said car, saw, or by the exercise of that high degree of care and vigilance described to you in instruction number two following, could have seen plaintiff so alighting from said car in time to have held said car stationary until she had safely alighted therefrom, defendant's said trainmen in charge of said car then and there carelessly and negligently caused said car to suddenly start forward, whereby plaintiff was thrown violently to the street pavement and injured, then your verdict should be for plaintiff."

2. "The jury are instructed that if you believe from the evidence that plaintiff was a passenger on defendant's street car in question, and that while such a passenger was injured, while attempting to alight therefrom, and that she was exercising ordinary care in attempting to alight, then before you can find against the plaintiff and in favor of defendant, the defendant company must prove to your satisfaction by a preponderance of the credible evidence in the case that its motorman and conductor then and there in charge of and operating said car could not have avoided injuring plaintiff, by the exercise of the highest practical degree of care that would have been exercised by very prudent persons, skilled as motormen and conductors, and engaged in operating a similar car under like circumstances."

It is argued by defendant that under the facts premised in the last of these instructions, it was error to charge the jury that the burden of proof was on defendant to show that the trainmen "could not have avoided injuring plaintiff by the exercise of the highest practical degree of care that would have been exercised by very prudent persons, skilled as motormen and conductors, and engaged in operating a similar car under like circumstances." Defendant, as a common carrier, was bound to employ the highest degree of care to avoid injury to its passengers, and in the performance of that duty, was required when signalled to stop at a regular stopping place, to bring the car to a complete stop and to hold it stationary until departing...