Engle v. St. Joseph Railway, Light, Heat & Power Co.
| Decision Date | 07 December 1931 |
| Docket Number | No. 17295.,17295. |
| Citation | 44 S.W.2d 175 |
| Court | Missouri Court of Appeals |
| Parties | ENGLE v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER CO. |
Appeal from Circuit Court, Buchanan County; J. V. Gaddy, Judge.
"Not to be officially published."
Action by Matilda Engle against the St. Joseph Railway, Light, Heat & Power Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Mayer, Conkling & Sprague and Emmett J. Crouse, all of St. Joseph, for appellant.
Sherman, Pyle & Sherman and R. F. Mumford, all of St. Joseph, for respondent.
This is an action to recover damages for personal injuries sustained by plaintiff in alighting from one of defendant's street cars on which she was riding as a passenger. There was a verdict for $1,500 in her favor, on which judgment was rendered, and defendant has appealed.
The first error complained of is the giving of plaintiff's instruction No. 1, submitting plaintiff's case, in that the instruction included a ground of negligence not contained within the bounds of the petition.
After alleging that the street car was being operated on St. Joseph avenue in the city of St. Joseph; that plaintiff, desiring to alight at McDonald street, gave the proper signal to the motorman, and, in response thereto, the motorman stopped said car at McDonald street for the purpose of allowing plaintiff to alight; that unknown to the plaintiff, prior to the time of alighting, repairs were being made in the street adjacent to the tracks and at the intersection of St. Joseph avenue and McDonald street; that defendant, well knowing of said repairs and well knowing the unsafe condition for passengers to alight at said point, carelessly stopped the car and permitted plaintiff to alight at a place that was unsafe, insecure, and dangerous for passengers to alight; that defendant negligently placed boards on St. Joseph avenue adjacent to the tracks as a place or platform upon which passengers were to alight; that the platform was dangerous, unsafe, and insecure, and was of such a distance from the step of the car as to make it unsafe and dangerous for passengers to alight without a box or other convenience being placed as a step when alighting; that defendant carelessly maintained a dangerous, unsafe, and insecure platform upon which passengers were to alight, and carelessly stopped said car at an unsafe, dangerous, and insecure place for plaintiff to alight, and carelessly invited and compelled plaintiff to alight at a place where the platform was too far below the step of said car, making it dangerous and unsafe for passengers to alight; that plaintiff "in alighting from said street car at said place at said intersection of St. Joseph Avenue and McDonald Street as aforesaid was caused to fall because of the conditions above set out and sustained various injuries," etc., "directly as a result of said fall in alighting from said street car at the time and place aforesaid, and as a result of the carelessness of the defendant as above set out."
The instruction complained of, and which submitted plaintiff's case, after telling the jury that "it was the duty of the defendant to exercise toward her (plaintiff) the utmost care, skill and vigilance to carry her safely to her destination," and also "upon her arrival there to stop the car at its usual stopping place, or at some other place where it was reasonably safe and suitable for plaintiff to alight therefrom," then went on to say that if the jury find and believe "from the evidence that the agents and servants of defendant, in managing said car, failed to exercise the utmost care, skill and vigilance, and by reason thereof, said car was not stopped at the defendant's usual stopping place, or at some place which was reasonably safe and suitable for plaintiff to alight, but that said car was stopped at a place where the distance to the ground was so great, or loose boards at said place, if you so find, rendered it unsafe for plaintiff to alight by the use of care and caution on her part, and that said car was brought to a full stop for plaintiff to get off and that she did get off said car, at...
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