Davis v. Metropolitan St. Ry. Co

• Decision Date: 18 June 1915
• Docket Number: No. 11610.,11610.
• Citation: 177 S.W. 1097
• Parties: DAVIS v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

177 S.W. 1097

DAVIS v. METROPOLITAN ST. RY. CO.

No. 11610.

Kansas City Court of Appeals. Missouri.

June 18, 1915.

Rehearing Denied July 7, 1915.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by Mrs. Mary B. Davis against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John H. Lucas and Bruce Barnett, both of Kansas City, for appellant. Hadley, Cooper & Neel and Ralph Haden, all of Kansas City, for respondent.

ELLISON, P. J.

This is an action for personal injury received by plaintiff while a passenger on one of defendant's street cars. She recovered judgment in the circuit court.

Just before arriving at the place where she wished to alight she signaled the conductor to stop the car, and he did so. Plaintiff had a live chicken in one hand and a basket of groceries on the other arm, leaving the hand free to hold to the post or hand bar at the exit. Other passengers preceded her, and as she was upon the step and was in the act of stepping to the street the car suddenly started and threw her on her back onto the street, inflicting painful injury. There was evidence tending to show negligence on the part of the conductor and motorman, and defendant did not plead contributory negligence.

We are therefore left to consider objections to instructions for plaintiff. It is said, and we think there is some ground for it, that instruction No. 2 assumes that defendant's servants were negligent. The instruction is of some length, and need not be set out in full. It is therein said that:

"The court instructs the jury that, if you find and believe from the evidence in this case * * * that plaintiff had both her feet on the step of the car and was in the act of stepping to the pavement of the street, when the servants of defendant in charge of the car carelessly and negligently and without warning caused the car to start forward," etc.

The jury are required to find from the evidence that plaintiff had her feet on the car step and was in the act of getting off when the servants negligently started the car. But this is cured by defendant's instruction No. 6, wherein the jury are told specifically that plaintiff could not recover unless it was believed that defendant carelessly and negligently started the car when she was in the act of alighting. The instructions must be read together, and, when that is done, it is found the jury were properly directed. La Riviere v. La Riviere, 97 Mo. 80, 10 S. W. 840; Montgomery v. Railroad, 181 Mo. 477, 79 S. W. 930. Another objection to the instruction is that it did not require the jury to find that defendant's servants knew plaintiff had not gotten off the car when they started forward, and Cramer v. Traction Co., 112 Mo. App. 350, 87 S. W. 24, is cited as supporting the objection. That case and this are wholly dissimilar. In that case there was no conductor, and the motorman had to remain at the front. In this case there was a conductor whose duty was to be at the rear where passengers were alighting. It was the duty of the motorman not to start until signaled by the conductor, and it was the duty of the latter not to give the signal until passengers had left the car. Instructions must be considered in connection with the evidence, and we think there is no ground, within the bounds of reason, to suppose the jury did not understand that defendant's servants knew, or should have known, when they started the car, that plaintiff had not yet alighted.

Another objection to the instruction is that it did not require the jury to believe that plaintiff was exercising due care. We think it does.

Objection is taken to instruction No. 3, in that after stating the degree of care defendant should exercise it proceeded, "and defendant is liable for all injuries resulting from...