Foster v. United Rys. Co. of St. Louis

• Decision Date: 02 June 1914
• Docket Number: No. 13651.,13651.
• Citation: 167 S.W. 643,183 Mo. App. 602
• Parties: FOSTER v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

167 S.W. 643

183 Mo. A. 602

FOSTER v. UNITED RYS. CO. OF ST. LOUIS.

No. 13651.

St. Louis Court of Appeals. Missouri.

June 2, 1914.

1. APPEAL AND ERROR (§ 1064)—INSTRUCTIONS—PLACE OF ACCIDENT—HARMLESS ERROR.

Where, in an action for injuries to a passenger while boarding a street car, there was no dispute throughout the trial that plaintiff was injured by being dragged by defendant's car at a certain street corner, an instruction for plaintiff which by mistake submitted the case to the jury as though the injury occurred at another corner some three or four blocks away did not render the instruction so misleading as to constitute reversible error.

2. APPEAL AND ERROR (§ 1064)—PREJUDICE— DEFECTIVE INSTRUCTIONS.

Under Rev. St. 1909, § 2082, providing that a judgment shall not be reversed unless the court shall believe that error was committed against appellant materially affecting the merits of the action, a mistake or defect in an instruction is not ground for reversal, unless the reviewing court believes it prejudicially affected the substantial rights of the complaining party.

3. DAMAGES (§ 158)—PERSONAL INJURIES— PLEADING AND PROOF.

Where plaintiff alleged that his knee was lacerated as a result of being dragged in the street by defendant's street car, such allegation justified evidence that his knee was swollen at the time of the trial, under the rule that one may show such a resulting condition as naturally follows the injury set out in the petition without specially pleading it.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by Joseph S. Foster against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Priest, Paul U. Farley, and Elmer C. Adkins, all of St. Louis, for appellant. Joseph A. Wright, of St. Louis, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

Defendant is a common carrier of passengers, and, as such, operates numerous lines of street cars in St. Louis. Plaintiff received his injuries while attempting to board one of defendant's cars on the Manchester line, in that, according to the evidence in his behalf, the car was prematurely started by those in charge of it while he was in the very act of boarding it at the corner of Clark avenue and Twenty-First street; that is, the usual stopping place. The evidence tends to prove that plaintiff, together with some four or five other persons, stood awaiting the approach of the car on the corner of Clark avenue and Twenty-First street, and that the car stopped there to receive them as passengers. Plaintiff carried a parcel under his arm, and it is said he therefore waited until the others first boarded the car. Thereupon he laid hold of the handrail and stepped upon the car in the act of taking passage, and simultaneously therewith the conductor caused it to start forward. It is said the sudden movement of the car thus precipitated plaintiff into the street, and he was dragged along beside the car for some distance. The injuries received appear to be serious and permanent.

On the part of defendant the evidence tends to prove that the car did not stop at all, but passed the corner where plaintiff attempted to board it at the rate of some three or four miles per hour. The witnesses for defendant say that plaintiff was not standing at the usual stopping place, but rather ran after the car as it passed the corner of Clark avenue and Twenty-First street, and caught hold of the handrail in attempting to board it. In thus attempting to board a moving car, he was precipitated from his feet and dragged along in the street beside the car until he finally yielded to unconsciousness and loosed his grip upon the handrail.

There is no controversy in the case touching the fact that plaintiff was injured while attempting to board the car, though, according to the evidence of defendant, he grabbed hold of, and was dragged by, it while moving. Neither is there a controversy in the case as to the fact that plaintiff received his injuries at the corner of Clark avenue and Twenty-First street. The first argument advanced for a reversal of the judgment...