Benjamin v. Metropolitan Street Railway Co.

• Decision Date: 14 November 1912
• Parties: ELIZABETH J. BENJAMIN v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

151 S.W. 91

245 Mo. 598

ELIZABETH J. BENJAMIN v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri

November 14, 1912

Appeal from Jackson Circuit Court. -- Hon. Walter A. Powell, Judge.

Affirmed.

John H Lucas and Charles N. Sadler for appellant.

(1) The evidence shows conclusively there was no misconduct upon the part of Clark and the motion for new trial should not have been sustained on that account. State ex inf. v. Clark, 134 Mo.App. 55; Feary v. Railroad, 162 Mo. 106; Kennedy v. Holladay, 105 Mo. 24; State v Shipley, 171 Mo. 550; State v. Gray, 172 Mo 435; Hamberger v. Rinkel, 164 Mo. 406; Paramore v. Lindsey, 63 Mo. 67; Bank v. Fults & Co., 115 Mo.App. 49; Mule Co. v. Reed, 114 Mo.App. 305; McGraw v. O'Neil, 123 Mo.App. 707; Meriwether v. Knapp & Co., 120 Mo.App. 381. (2) The court erred in refusing to give the peremptory instruction in the nature of a demurrer offered by the defendant at the close of plaintiff's evidence, and again at the close of all the evidence; therefore it was error to grant a new trial in any event. Scroggins v. Railroad, 120 S.W. 731; Detrich v. Railroad, 127 S.W. 603; Beave v. Transit Co., 212 Mo. 331; Roscoe v. Railroad, 202 Mo. 576; Orcutt v. Bldg. Co., 201 Mo. 424; McGrath v. Transit Co., 197 Mo. 97; Ingles v. Railroad, 129 S.W. 492; Hite v. Railroad, 130 Mo. 140; Curley v. Railroad, 104 Mo. 211; 2 White on Personal Injuries on Railroads, Sec. 661; Nugent v. Milling Co., 131 Mo. 241; Pryor v. Railroad, 85 Mo.App. 378; Bartley v. Railroad, 148 Mo. 138; Allen v. Transit Co., 183 Mo. 435; Saxton v. Railroad, 98 Mo.App. 503. (3) The verdict of the jury herein being manifestly for the right party it should not have been set aside by the court and a new trial granted even though all the errors charged in the motion for new trial had been committed. R. S. 1899, Sec. 865; Quinn v. Railroad, 218 Mo. 545; Mockowik v. Railroad, 196 Mo. 568; Baustian v. Young, 152 Mo. 325; Bassett v. Glover, 66 Mo. 381; Mtg. & Tr. Co. v. Crutcher, 169 Mo. 458; Fairbanks v. Long, 91 Mo. 628; County v. Bank, 157 Mo. 137; Bushey v. Glenn, 107 Mo. 331; Henry v. Railroad, 113 Mo. 526; Moore v. Railroad, 176 Mo. 545; Burns v. City, 131 Mo. 372; Swope v. Ward, 185 Mo. 329; State v. Jennings, 134 Mo. 281; Carr v. Railroad, 195 Mo. 224; Wabash v. Sloop, 200 Mo. 198.

A. F. Smith, Boyle & Howell and Guthrie, Gamble & Street for respondent.

(1) The trial court properly granted a new trial on account of the misconduct of the defendant. Tatlow v. Grantham, 66 Mo.App. 509. (2) Defendant contends that the verdict in this case should be sustained because the evidence fails to establish a cause of action. The plaintiff in this case was in the act of getting upon a car at its usual stopping place while the car was standing. She was a large, heavy woman. While she was in the act of moving from a step to the platform, where a movement of the car would throw her off of her balance, the car was started up. Clearly this state of facts presented at least a question for the jury to say whether this act of the defendant was or was not negligent. Brady v. Traction Co., 140 Mo.App. 421. (3) Defendant contends that the verdict of the jury should be sustained because it was for the right party. A judgment is not to be affirmed because the verdict is for the right party, when there is substantial evidence in favor of the plaintiff and error committed on the trial of the case. Error is presumed to be prejudicial, and when error is prejudicial, a verdict cannot be for the right party, unless, under all the facts and circumstances, the court would have to direct a verdict for the defendant. In other words, the ruling that a verdict was for the right party is practically a ruling that a demurrer to the evidence should have been sustained, and in such case every intendment is in favor of the plaintiff. Phelan v. Paving Co., 115 Mo.App. 432; Bender v. Railroad, 137 Mo. 245; Buesching v. Gas Light Co., 73 Mo. 219; Donohue v. Railroad, 91 Mo. 357; Montgomery v. Railroad, 181 Mo. 477; Powers v. Transit Co., 202 Mo. 280; Wilson v. Board of Education, 63 Mo. 137; Moore v. Transit Co., 194 Mo. 1; Franke v. St. Louis, 110 Mo. 516; Grocery Co. v. Hudson, 147 Mo.App. 31. (4) The court erred in instructing the jury on behalf of defendant. (a) The court erred in giving defendant's instruction 3. This instruction does not state the law. If plaintiff was on the platform, but was in a position of peril, the defendant was bound to wait until she could get into a safe position. (b) The court erred in giving defendant's instruction 4. The vice of this instruction is well stated in Brady v. Traction Co., 140 Mo.App. 421, and Lehner v. Railroad, 110 Mo.App. 220. (c) The court erred in giving defendant's instruction 5. If a passenger is in simply a "reasonably safe" position, the carrier is not exercising the highest degree of care in starting its car under such circumstances, even though it may start the same with merely the "usual" jerk. (d) The court erred in giving defendant's instruction 6. This instruction is subject to exactly the same vice which was held to be fatal error in Allen v. Railroad, 183 Mo. 432. (e) Instruction 8 was erroneous. The instruction imposed upon the defendant a degree of care greatly less than that required by law. It required the defendant to use only such care as was reasonably practicable, whereas, the duty of a carrier is to exercise the very highest degree of care. Loftus v. Railroad, 220 Mo. 470; Price v. Railroad, 220 Mo. 435. (f) Defendant's instruction 10 was erroneous. This instruction has been disapproved in a number of recent cases in this court. Zander v. Transit Co., 206 Mo. 461; Stetzler v. Railroad, 210 Mo. 712.

VALLIANT, C. J. Lamm, Woodson, Kennish and Brown, JJ., concur; Ferriss, J., concurs in paragraphs I and II, and in the result, but dissents from paragraph III. Graves, J., dissents in a separate opinion filed.

OPINION

In Banc

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 fifty-seven years of age and at the time of the accident weighed about one hundred and ninety 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 the defendant the evidence tended to show that when the car stopped at the crossing where the two women got on, they were both standing near the curb talking and gave no indication of intention to get on the car, therefore the conductor gave the signal to start. He was at the time inside the car. When the bell rang and the car started the two women ran and jumped on the car and neither of them fell. They said something to the conductor about running off and leaving them, and when they were getting off the car at the point of their destination the plaintiff said something to the conductor about her knee hurting her.

There was evidence for and against the plaintiff's claim of injury and the degree thereof. There was no evidence as to the manner of the starting of the car as the plaintiff was getting on, that is, whether it was sudden or fast or slow. Her testimony was that it started to move after she got on the step; the testimony of defendant was that she ran and got on the step after the car was in motion. That was the main issue of fact in the case. At the close of plaintiff's evidence, the defendant asked an instruction in the nature of a demurrer to the evidence which was overruled and exception taken. The cause was submitted to the jury on instructions for plaintiff and for defendant, some of which will be discussed in the course of this opinion.

I. Appellant insists that its instruction in the nature of a demurrer to the evidence should have been given because...