Findley v. Wells

• Decision Date: 04 March 1924
• Docket Number: No. 18354.,18354.
• Citation: 260 S.W. 506
• Parties: FINDLEY v. WELLS.
• Court: Missouri Court of Appeals

260 S.W. 506

FINDLEY v. WELLS.

No. 18354.

St. Louis Court of Appeals, Missouri.

March 4, 1924.

Rehearing Denied March 18, 1924.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Alice Findley against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. B. Francis, and Alva W. Hurt, all of St. Louis, for appellant.

John T. Manning, of St. Louis, and E. McD. Stevens, of Clayton (James Roberts, of St. Louis, of counsel), for respondent.

BECKER, J.

Plaintiff recovered a judgment for $3,500 against the defendant for personal injuries alleged to have been sustained by her as the result of having been thrown from one of the defendant's street cars, through the negligent starting thereof at a time when plaintiff was in the act of boarding same. Defendant appeals.

There are but two assignments of error. The first is that the court erred in giving the jury plaintiff's instruction numbered 1. It is urged that said instruction presented issues to the jury not raised by the pleadings, and which were beyond the purview of the pleadings on which the case was tried. This point is without merit.

The charge of negligence in the petition is as follows:

"Plaintiff thereupon, without delay and with due care on her part, proceeded to board the trailer of said car and put her right foot upon the lower step of the platform of said trailer, and got hold of the handrail of said platform, and was in the act of putting her other foot upon the step of said car when the defendant's employés in charge of said car carelessly and negligently, and without warning, caused said car to plunge violently forward and proceed on its way, without waiting for the plaintiff to get a safe and firm footing upon the said trailer of the said car. Plaintiff states that the violent and unexpected start which the defendant's employés carelessly and negligently caused said car to make, without warning to plaintiff to get a safe and firm footing upon said car, was of such character as to throw the plaintiff off the lower step of the platform of said car, and, did throw her off of said lower step, and precipitated her violently to the granite pavement on said Olive street, with such force as to injure her as hereinafter more fully set forth."

Plaintiff's instruction numbered 1, against which the criticism is levied, is as follows:

"The court instructs the jury that if you believe from the evidence that defendant, on September 28, 1921, was operating the car mentioned in the evidence, and for the purpose of carrying passengers for hire, and that on said day his agents and servants stopped said car at or near the northwest corner of Broadway and Olive street, in St. Louis, Mo., for the purpose of taking on or discharging passengers, and that while said car was stopped plaintiff was standing at such stopping point and thereupon immediately exercised reasonable care to get upon said car, and that, while she was in the act of getting upon said car it was caused to plunge violently forward by defendant's servants and agents before plaintiff could, by the exercise of reasonable care on her part, have gotten safely upon said car, and that the defendant's employés in charge of said car saw, or by the exercise of ordinary care could have seen, said plaintiff while she was attempting (if you find she was so attempting to get on said car) to get on said car; and, if you further believe that the defendant's servants and agents in charge of said car negligently caused or suffered said car to start and move violently forward, and that thereby plaintiff was thrown from said car to the street; and, if you further believe that prudent men engaged in the street railway business, in the exercise of ordinary acre, would not have started said car forward under such circumstances, then the defendant was guilty of negligence; and, if you believe that said plaintiff was, as the direct result of such negligence, if any, thrown from said car to the ground and was thereby injured, then your verdict, should be for the plaintiff, provided you further believe that plaintiff was in the exercise of ordinary care for her own safety at the time."

To more readily compare the negligence pleaded with that set out in the instruction, we have italicized the charge of negligence in that part of the petition which we have quoted above, as well as in plaintiff's main instruction.

Appella...