Forrester v. Metropolitan St. Ry. Co.

• Decision Date: 08 January 1906
• Citation: 116 Mo. App. 37,91 S.W. 401
• Parties: FORRESTER v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

91 S.W. 401

116 Mo. App. 37

FORRESTER v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

January 8, 1906.

Rehearing Denied February 5, 1906.

1. CARRIERS — INJURIES TO PASSENGER — PETITION — PROOF — SUFFICIENCY.

An allegation in the petition, in an action against a street railway company for injuries received by a passenger while attempting to board a car in consequence of the sudden starting of the car, that it had come to a stop when signaled and when plaintiff attempted to board it, is supported by evidence showing that the car had, on plaintiff's signal, so slackened its speed that it barely had a perceptible motion at the time he attempted to board it.

2. SAME — PLEADING — PETITION — INDUCEMENT.

An allegation in the petition, in an action against a street railway company for injuries received by a passenger while attempting to board a car in consequence of its sudden starting, that the car came to a stop when signaled, is a matter of inducement, and the negligence consists in the starting of the car.

3. APPEAL — OBJECTIONS NOT RAISED BELOW.

An objection to the admissibility of evidence not made in the trial court will not be considered on appeal.

4. TRIAL — INSTRUCTIONS — CURE OF ERROR

Where, in an action against a street railway company for injuries received by a passenger while attempting to board a car, the court directed the jury not to find for plaintiff if he was guilty of negligence, the error in a charge that, before plaintiff's right to recover could be defeated, defendant must show that plaintiff failed to exercise ordinary care, arising from the failure to state that before plaintiff's right to recover could be defeated on the ground of contributory negligence defendant must prove a failure to exercise ordinary care, was not prejudicial.

5. NEGLIGENCE — PERSONAL INJURY — CONTRIBUTORY NEGLIGENCE — BURDEN OF PROOF — INSTRUCTIONS.

An instruction, in an action for personal injury negligently inflicted, that before plaintiff's right to recover could be defeated defendant must show that plaintiff failed to exercise ordinary care, correctly imposed on defendant the duty of showing that plaintiff failed to exercise ordinary care, and that such failure caused the injury.

6. TRIAL — INSTRUCTIONS — FAILURE TO REQUEST.

Where an instruction on the measure of damages in a personal injury action was not improper, and defendant desired that it should state in greater detail the elements of damage, he should so request.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Andrew Forrester against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas and Frank G. Johnson, for appellant. Reed, Yates, Mastin & Howell, for respondent.

ELLISON, J.

Plaintiff charges that he received personal injuries through the negligence of defendant's servants employed to manage and run one of its street cars in Kansas City. He recovered judgment in the trial court. The plaintiff, who was shown to be 77 years old, attempted to board a car at the intersection of Fifteenth street and Sidney avenue. He signaled for the car to stop, and as it did so he walked around the rear end towards the north side of the car in order to reach the opening onto the rear platform. In passing around, he took hold of the railing at the corner of the platform and next to the step. He then, while still holding the railing, attempted to get onto the step, and, in the act, had raised one foot, when the car started up with such suddenness and rapidity as to jerk him down onto the street, whereby he received the injuries of which he complains.

The petition alleges that the car came to a stop when signaled by plaintiff. Defendant contends that the evidence fails to sustain the allegation; but, on the contrary, that it shows the car did not stop. The testimony given by plaintiff himself leaves it uncertain whether the car had come to what was called at the argument an absolute dead stop, or whether it still had barely a perceptible motion. We think the difference would be unsubstantial. At any rate, it is held in Ridenhour v. Railway Co., 102 Mo. 283, 285, 13 S. W. 889, 14 S. W. 760, that an allegation of the car having stopped was matter of inducement; that the negligence charged was in the starting up. Aside...