Benjamin v. Metropolitan St. Ry. Co.

• Decision Date: 14 November 1912
• Citation: 151 S.W. 91,245 Mo. 598
• Parties: BENJAMIN v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

151 S.W. 91

245 Mo. 598

BENJAMIN v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri.

November 14, 1912.

1. CARRIERS (§ 320)—ACTION FOR INJURIES— QUESTION FOR JURY—"SUDDEN" STARTING OF CAR.

On evidence in an action against a street railroad for injuries from negligently and suddenly starting a car, as plaintiff was entering, construing the word "sudden" to mean happening without notice, coming unexpectedly, held, that the question whether the car was negligently started was for the jury.

2. CARRIERS (§ 247)—CARRIAGE OF PASSENGERS —WHO ARE PASSENGERS—PERSON ENTERING CAR.

A person in the act of getting upon a street car is a passenger.

3. CARRIERS (§ 280)—CARRIAGE OF PASSENGERS —CARE REQUIRED.

A carrier owes to a passenger the exercise of the highest degree of care that a prudent person experienced in that business can practicably exercise.

4. CARRIERS (§ 320)—CARRIAGE OF PASSENGERS —QUESTION FOR JURY—CARR TOWARD PERSON ENTERING.

The mere fact of starting a street car befor a passenger has taken his seat is not negligence per se, and whether it is negligence to do so in a particular case is a question for the jury.

5. CARRIERS (§ 320)—ACTION FOR INJURIES— QUESTION FOR JURY.

On evidence in an action against a street railroad for personal injuries, held, that the question whether the plaintiff, a woman of 57 years, weighing nearly 200 pounds, facing forward while entering the car from the platform, could have been thrown forward by its start, was for the jury.

6. APPEAL AND ERROR (§ 854)—MOTION FOR NEW TRIAL—GROUND.

Where a motion for a new trial is sustained, and the court states in its order a ground on which it bases its ruling, the appellate court, if it concludes that on the ground stated the new trial should not have been granted, will reverse the order, unless its attention is called to some other ruling of the trial court which justified the order, as it is not bound to search the record to find grounds other than

those assigned by the trial court, but, if respondent brings to its notice any other point sustaining the ruling, it will be considered.

7. CARRIERS (§ 320)—ACTION FOR INJURIES —QUESTION FOR JURY—NEGLIGENCE IN STARTING CAR.

On evidence in an action against a street railroad for personal injuries, the question whether defendant was negligent in starting the car and throwing and injuring plaintiff, a woman of 57, weighing nearly 200 pounds, as she was entering and making her way toward a seat, was for the jury.

8. CARRIERS (§ 287)—CARRIAGE OF PASSENGERS —CARE REQUIRED—TAKING UP PASSENGER.

Where the conductor of a street car took up a woman of 57 years, weighing nearly 200 pounds, and while she was exercising due care in entering the car from the platform, in the exercise of the high degree of care devolving on the carrier would have seen her position and realized her peril, he was negligent in starting the car in such way as to throw her down and injure her.

9. CARRIERS (§ 320)—CARRIAGE OF PASSENGERS —CARE REQUIRED—TAKING UP PASSENGERS.

It is not negligence per se to start a street car while passengers are standing up in it, nor is it negligence per se to start it while passengers are standing on the platform, or in the vestibule.

10. CARRIERS (§ 314)—PLEADING (§ 367)— ACTION FOR INJURIES—PLEADING—ALLEGATIONS AS TO NEGLIGENCE—MOTION TO MAKE DEFINITE.

Facts constituting a carrier's negligence towards a passenger must be pleaded. The pleader may charge specific negligence, or general negligence which will be sufficient in the absence of a motion to make more definite and certain, and such a motion may be denied when the facts are of a character beyond the knowledge of the pleader or particularly within the knowledge of the carrier, as when a train is derailed. In the pleading of general negligence, the facts must be stated with sufficient certainty to point the adversary to the event or the occurrence in the happening of which negligence is charged.

11. NEGLIGENCE (§ 117)—PLEADING (§ 8)— CONTRIBUTORY NEGLIGENCE AS GROUND OF DEFENSE.

Contributory negligence is an affirmative defense and must be pleaded to be available, and, to be sufficient, the facts constituting contributory negligence must be pleaded; but, where the plaintiff in making out his own case shows that he was guilty of negligence that contributed to his injuries, no plea of contributory negligence is necessary, and a plea that, if the plaintiff received any injuries at the time mentioned in his petition, they were caused by his own fault and negligence, is insufficient.

12. NEGLIGENCE (§ 141)—CONTRIBUTORY NEGLIGENCE —INSTRUCTIONS.

An instruction that, if the plaintiff was guilty of negligence of any character which directly contributed to her injuries, she could not recover, was erroneous, in that it did not specify the facts constituting such negligence.

13. CARRIERS (§ 321)—CARRIAGE OF PASSENGERS —ACTION FOR INJURIES—INSTRUCTIONS—DEGREE OF CARE "PRACTICABLE."

An instruction in an action against a street railroad for personal injuries that, if defendant exercised all the care and prudence that were reasonably practicable, it was not negligent, was erroneous, in that the word "practicable" means "capable of being done or accomplished with available means or resources," and includes the element of reasonableness, what is unreasonable not being practicable, and the qualifying word "reasonably" renders the construction confusing and liable to misconstruction.

14. TRIAL (§ 236)—INSTRUCTIONS—CREDIBILITY OF WITNESSES.

An instruction that, while the plaintiff was a competent witness in her action for personal injuries, yet, in determining the weight to be given her testimony, her interest in the result of the trial and the fact that she was testifying on her own behalf should be considered, that whatever she said against her own interest was presumed to be true because against her interest, but that what she said in her own behalf might be regarded as true or false when considered with all the evidence in the case — was bad, in that it pointed out plaintiff, and especially called attention to the fact of her interest as an inducement to swearing falsely, and in that it declared all her testimony against interest to be true, and required all said in her interest to be scrutinized with care.

15. APPEAL AND ERROR (§ 978)—REVIEW— DISCRETION OF TRIAL COURT—MISCONDUCT OF PARTY.

The trial judge while taking dinner at the same tavern saw three jurors and two of defendant's claim agents at the same table, and on reopening court called the attention of attorneys thereto, and said to plaintiff's attorney that he would discharge the jury, and was assured by defendant's counsel that he would caution the agent, and on the following day the three jurors asked the claim agent to join them in a game of pool which they lost, and for which they paid, and then accepted cigars from the claim agent. Their meeting at dinner was accidental, and nothing was there said about the trial, nor did the agent pay for their dinners. Held, that the granting of a new trial for the misconduct of defendant's claim agent was not an abuse of the trial court's discretion.

Graves, J., dissenting, and Ferris, J., dissenting in part.

In Banc. Appeal from Circuit Court, Jackson County; Walter B. Powell, Judge.

Action by Elizabeth A. Benjamin against the Metropolitan Street Railway Company. From an order granting plaintiff's motion for a new trial after verdict for defendant, defendant appeals. Affirmed.

John H. Lucas and Chas. N. Sadler, both of Kansas City, for appellant. A. F. Smith, Boyle & Howell and Guthrie, Gamble & Street, all of Kansas City, for respondent.

VALLIANT, C. J.

Plaintiff sues for damages for personal injuries alleged to have been sustained by her through the negligence of the defendant while she as a passenger was attempting to board one of defendant's street cars. The amount of damages claimed is $10,000. The negligence charged in the petition is: "While the plaintiff was in the act of getting upon said car, and while she was in a position of peril, all of which was known, or by the exercise of due care should have been known, to the defendant, it negligently started said car and negligently suddenly started said car, and the plaintiff, by reason of the said negligent acts of the defendant, was thrown and caused to fall against parts of said car." The answer was a general denial and what was probably intended as a plea of contributory negligence. It was in these words: "And, for further answer, defendant says that, if plaintiff received any injuries at the time mentioned in said petition, the same was caused by plaintiff's own fault and negligence." The trial resulted in a verdict for the defendant, but the court sustained the plaintiff's motion for a new trial, and from that order the defendant appealed.

The testimony on the part of the plaintiff tended to prove as follows: Plaintiff is a woman 57 years of age, and at the time of the accident weighed about 190 pounds. She and a woman companion stood at a crossing, waiting for the street car. When the car reached the crossing, it stopped as to receive passengers, and while it was standing still plaintiff proceeded to go aboard of it. She got on the step, and, with one foot on the step and the other on the platform, she was in the act of getting on the platform with both feet, when the car started to move, and she fell on her knee, striking it on the step that leads from the platform (or vestibule) into the car. She arose, and went into the car and sat down, not realizing at the time any severe injury, but such injury developed afterwards. Plaintiff's companion followed her, stepping on the step just after plaintiff, and just as plaintiff stepped on the platform. She did not see plaintiff fall, but saw her rise, and the two went into the car and sat down together, and when the car reached their destination, the two walked out of the car, and walked home. On the part of ...