Fischbach v. Dunham

• Decision Date: 01 April 1918
• Docket Number: No. 12696.,12696.
• Citation: 203 S.W. 217
• Parties: FISCHBACH v. DUNHAM et al.
• Court: Missouri Court of Appeals

203 S.W. 217

FISCHBACH v. DUNHAM et al.

No. 12696.

Kansas City Court of Appeals. Missouri.

April 1, 1918.

Appeal from Circuit Court, Jackson County; Harris Robinson, Judge.

"Not to be officially published."

Action by Christian Fischbach against R. J. Dunham and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Clyde Taylor, of Kansas City, for appellants. Henry West, of Brookfield, and Wilkinson & Wilkinson, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for personal injury resulting from being thrown to the street from one of defendant's street cars. She recovered judgment in the trial court for $1,500.

It is charged in the petition that plaintiff became a passenger on one of defendant's cars, and, desiring to get off, she signaled for the car to stop; that she proceeded to the rear platform, and, while standing thereon preparatory to alighting, the car, still moving, was negligently and suddenly started forward whereby she was thrown full length onto a paved street. We have examined the record and find no substantial error in the trial. The evidence in plaintiff's behalf tended to support the allegations of negligence and the verdict rendered thereunder.

Contributory negligence was not pleaded by defendant, and hence cannot be insisted upon as a defense unless the evidence, without dispute, shows such negligence, and that cannot be said of this record.

Instruction A given for plaintiff informed the jury that it was the duty of defendant's employés "to use the highest practicable degree of care that can reasonably he expected of prudent, skillful, and experienced men engaged in that kind of business to safely carry and transport plaintiff, and any failure on the part of defendant's said employés to exercise such care would be negligence." The charge in the petition was of specific negligence in suddenly starting the car by a jerk, so that it suddenly lurched forward. It was said in Davidson v. Transit Co., 211 Mo. 320, 355, 356, 361, 109 S. W. 583, that the instruction should have been confined to that charge. Instead it broadens the charge to the extent of requiring such care in all matters connected with the operation of the car, and directs that any failure to exercise such care would be negligence. But, as in the case cited, this is not reversible error, since all the proof showed that whatever injury plaintiff received was from the specific negligence charged.

The criticism on instruction B is not...