Bennett v. Metropolitan St. by. Co.

• Decision Date: 06 December 1915
• Docket Number: No. 10961.,10961.
• Citation: 180 S.W. 1050
• Parties: BENNETT v. METROPOLITAN ST. BY. CO.
• Court: Missouri Court of Appeals

180 S.W. 1050

BENNETT v. METROPOLITAN ST. BY. CO.

No. 10961.

Kansas City Court of Appeals. Missouri.

December 6, 1915.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

"Not to be officially published."

Action by Essie Bennett against the Metropolitan Street Railway Company. Judgment for plaintiff, new trial granted, and plaintiff appeals. Judgment granting a new trial reversed, and cause remanded, with direction to reinstate the verdict and judgment rendered thereon.

C. W. Prince, E. A. Harris, and Joseph S. Rust, all of Kansas City, for appellant. John H. Lucas and Charles A. Stratton, both of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff recovered judgment for personal injuries alleged to have been caused by the negligence of the defendant while plaintiff was a passenger on a street car. The court granted a new trial on the ground that it had erred in refusing an instruction asked by defendant. Plaintiff appealed.

The gist of plaintiff's case is that the defendant's Prospect Avenue car had stopped at the usual stopping place at Fifteenth and Olive streets in Kansas City to take on passengers; that passengers began getting on, and among them was plaintiff; that while she was boarding said car, and after she had attained the status of a passenger, but before she had had time to reach a place of safety thereon, the car was suddenly and negligently started, causing her to be thrown from said car to the ground and injured.

The instruction which the court refused, and on account of which the new trial was granted, is as follows:

"If you believe and find from the evidence that before the conductor gave the signal to start the car the plaintiff had stepped upon the floor of the vestibule and had a reasonable time and opportunity to take hold of some part of the car to protect herself from falling, then there was no negligence on the part of the conductor in so giving said signal."

There is a dispute between the parties as to the way in which the plaintiff's fall occurred. The evidence in plaintiff's favor tends to show that she had gotten on the step of the car and had placed one foot on the platform of the vestibule and was raising her other foot from the step to put it on the platform when the car started, causing her to lose her equilibrium and fall from the car to the pavement. Defendant's evidence is to the effect that plaintiff followed her mother onto the car, which was of the pay as you enter variety; that the mother had gone around the usual course on the platform railed off for entering passengers, and was about to pass into the car proper, when the conductor, standing inside his railing, touched her on the arm and asked for her fare; that she stopped and began looking in her hand bag for the money; that in the meantime the plaintiff had gotten on the platform of the car and was standing with both feet thereon, and was holding to the handrail next to the conductor's stall, and the car started; that while standing thus on the platform, holding to the handrail and waiting for her mother to get the fares, plaintiff let loose of the handrail and stepped back toward the rear of the platform while the car was in motion, and, losing her balance, fell from the car. If these were the facts, plaintiff had attained a place of safety on the car when it started. In that case, there was no negligence in starting the car, since the plaintiff admits there was no jerk of the car when it started. There being no unusual jerk and nothing wrong in the manner of the car's start, plaintiff was in a place of safety, even though not yet in the car and seated, provided that at the time of the start she was standing with both feet on the platform and holding to the handrail. So " that if plaintiff was in the position defendant's evidence placed her, there was no negligence in starting the car. But if she was in the position plaintiff's evidence shows she was, then she was not in a place of safety, and the starting of the car, after she had begun to board it, but before she had reached a place of safety on the platform, was negligence which would render the company liable even if it started without a jerk. Stoddard v. St. Louis, etc., R. Co., 105 Mo. App. 512, 80 S. W. 33; Fields v. Metropolitan St. Ry. Co., 169 Mo. App. 624, 155 S. W. 845; Nelson v. Metropolitan St. Ry. Co., 113 Mo. App. 702, 88 S. W. 1119; Miller v. Metropolitan St. Ry. Co., 125 Mo. App. 414, 102 S. W. 592; Barth v. Kansas City Elevated Ry. Co., 142 Mo. 535, 44 S. W. 778; Jackson v. Grand Ave. Ry. Co., 118 Mo. 199, 24 S. W. 192; Devoy v. St. Louis Transit Co., 192 Mo. 197, 91 S. W. 140.

Of course, defendant was entitled to an instruction based on the evidence as given by its witnesses; and if the instruction above quoted had correctly set forth the proper conditions and situation from which no negligence could arise in starting the car, or, as the instruction puts it, in giving the signal to start, then it might have been error to refuse it. Defendant had a right to have the jury instructed as to the law governing the situation shown by the facts as presented by defendant's evidence. But the trouble is the instruction did not correctly do this, and therefore the court did not err in refusing it at the trial. And if there was no error in refusing it, then the refusal of said instruction cannot be made the ground for granting a new trial. The instruction does not require that any consideration be given to the question whether plaintiff had attained a place of safety when the car started. That element is left entirely out of it. The operatives of the car were required to exercise the highest degree of care for plaintiff's safety, since she had become their passenger. It was their duty to know that she was in a place of safety before starting the car. Now, the instruction does not include any of these features, nor is the instruction based on the situation of plaintiff as defendant's evidence placed her. It is so worded as to appear, at first glance, to cover the situation as presented by defendant's evidence; but, when the instruction is examined, it will be seen that it in no way does this. It says:

"If you believe that before the conductor gave the signal to start, the plaintiff had stepped upon the floor of the vestibule and had a reasonable time and opportunity to take hold of some part of the car to protect herself from falling, then there was no negligence," etc.

Now the plaintiff had testified that she had "stepped on the floor of the vestibule" before the car started, and was just raising her other foot off the step when it did start. Consequently, the above instruction would apply to plaintiff in that situation. But clearly plaintiff was not then in such place as that defendant's servants could start the car without violating their duty towards her as a passenger. Hence defendant was not entitled to have the instruction given,...