Davidson v. Dunham
| Citation | 183 S.W. 690 |
| Decision Date | 06 March 1916 |
| Docket Number | No. 11896.,11896. |
| Parties | DAVIDSON v. DUNHAM et al. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.
"Not to be officially published."
Action by Clyde E. Davidson against Robert J. Dunham and others. From an order setting aside a verdict for defendant and granting a new trial, defendants appeal. Affirmed.
John H. Lucas, of Kansas City, and L. T. Dryden, of Independence, for appellants. T. J. Madden, of Kansas City, for respondent.
Plaintiff's action was instituted to recover damages for injuries charged to have been received through defendant's negligence in the management of its street cars when plaintiff was endeavoring to take passage. There was a verdict for defendant, which the trial court set aside and ordered a new trial. The ground of this action, as stated by the court, was error in giving instructions Nos. 2 and 3. Defendant appealed from that order.
The injury occurred in Kansas. Plaintiff was an employé in one of the packing houses, who desired to come to Kansas City, Mo. As he was getting on the step of the eastbound car a west-bound car passed with a number of passengers standing on the platform and steps, their bodies standing out so far beyond the side of the car as to strike plaintiff as he was in this position. He was endeavoring to get on from the inside, or from between the tracks, but that was shown to have been a customary way for defendant to receive passengers at that point, doubtless induced by the number of employés leaving the packing house at quitting time. A great number were leaving at the time plaintiff was hurt, and several were endeavoring to board the car at the time plaintiff was.
There was abundant evidence in behalf of plaintiff, direct and circumstantial, to show that the motorman of the west-bound car was guilty of negligence in running his car by the standing car on which plaintiff and others were in the act of taking passage. We have examined the defendant's assertion about the state of the evidence, and find it not to be justified by the record. We must accept the testimony for plaintiff as true, and we must consider in his behalf all the circumstances, together with all reasonable inferences. The argument advanced here is mostly that which should be addressed to the triers of the facts. If the evidence in plaintiff's behalf is believed, then he is entitled to a verdict.
The instructions for defendant for which...
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