Frizzell v. Omaha Street Ry. Co.

• Decision Date: 27 July 1903
• Docket Number: 1,879.
• Parties: FRIZZELL v. OMAHA ST. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

124 F. 176

FRIZZELL v. OMAHA ST. RY. CO.

No. 1,879.

United States Court of Appeals, Eighth Circuit.

July 27, 1903

C. J Smyth (Ed. P. Smith, on the brief), for plaintiff in error.

John L Webster, for defendant in error.

Before SANBORN, THAYER, and VAN DEVANTER, Circuit Judges.

SANBORN Circuit Judge.

The plaintiff, Agnes Frizzell, brought an action against the defendant, the Omaha Street Railway Company, for $25,300 damages for negligence in the operation of one of its cars upon which she was a passenger, which she alleged inflicted serious injury upon her person. She averred in her petition that while she was riding upon this car it came to a complete stop; that she then arose from her seat and stepped upon the running board, which extended along the side of the car, and was in the act of alighting; that the conductor of the car saw her thus alighting, and that while she was doing so the defendant suddenly started the car, and brought her violently to the ground. The defendant answered that the car did not stop at the time the plaintiff arose from her seat to alight or at the time she alighted, and that it did not start suddenly forward during these times, but that it was moving slowly over the near cross-walk of a street crossing to enable the motorman to turn a switch over which it was about to pass, that the plaintiff stepped off the car when it was thus moving, and that a rule of the company required its employes to pass to the farther cross-walk of a street crossing before permitting the car to stop to allow passengers to enter it or to withdraw from it. The witnesses for the respective parties testified to the facts set forth in the pleadings of the parties who called them, and at the close of the testimony the evidence was uncontradicted (1) that the conductor had charge of the car; (2) that he saw the plaintiff as she arose from her seat and as she alighted; (3) that he knew she was doing so; (4) that the car was passing or about to pass, over a switch which the motorman was required to turn at the near cross-walk of a street crossing when the plaintiff alighted; and (5) that a rule of the company required the employes to take their car to the farther cross-walk of a street crossing before stopping it to permit passengers to alight. The witnesses for the plaintiff generally testified that the car stopped, and that it was its sudden start from its stationary position that caused the accident. The witnesses for the defendant gave evidence that the car did not stop, that there was no sudden increase of speed, movement, or jolt of the car, but that the plaintiff stepped off while it was slowly moving upon or over the switch. There was no evidence that there was any sudden increase of speed, jolt, or movement of the car while it was moving. The only evidence of a violent movement was the testimony of the witnesses who said that it came to a stop and that it suddenly started forward from this stationary position.

The court instructed the jury (a) that the burden of proof was upon the plaintiff to establish that the car stopped, and that it was suddenly started while the plaintiff was alighting; (b) that if it was thus stopped, and, while she was getting off, the car started up, and the conductor or party in charge of the car knew that she was in the act of getting off when the car started, she was entitled to their verdict; but (c) that if, at the time she attempted to get off and while she was getting off, the car had not stopped, but was still moving forward, then their verdict must be for the defendant; and that 'your first inquiry naturally when you retire to your jury room is, what was the fact as to whether the car was on motion at the time she attempted to get off and while she was attempting to alight from the car? If it was not in motion, had come to a stop, and the conductor knew that she was in the act of getting off, and the car started up again while she was in the act of getting off, and she was exercising due care in getting off, in the manner of getting off, and by the reason of the car thus starting she was thrown to the pavement and sustained injuries, I say she is entitled to recover.'

These instructions are challenged by counsel for plaintiff upon various grounds. They insist that it was error for the court to tell the jury that the plaintiff was only entitled to recover if the car first stopped, and was then started forward while she was alighting. They cite many instances where persons injured by sudden changes in the speed of moving cars from which they were debarking have been permitted to recover, and they earnestly urge that the court below should have charged the jury that, even if the car was moving when the plaintiff alighted, she was entitled to recover if she was thrown to the ground and injured by a sudden and violent increase of speed, movement, or jolt of the car. It is conceded that cases may and do arise in which it is permissible to submit to the jury the question whether or not a railroad company is negligent in suddenly increasing the speed of a moving car while a passenger is in the act of alighting from it. But that rule of law had no relevancy to this case, and any attempt to have applied it to the facts which this record presents would have been palpable error, because the plaintiff made no such charge in her complaint, because no such issue was presented or tried, and because there was no substantial evidence to sustain such an averment at the trial.

Instructions to the jury should be limited to the facts of the case on trial, and to the rules of law which apply to those facts and govern the actual issues which they present, and neither theories which there is no evidence to sustain, nor principles of law which are inapplicable to the evidence actually presented, should be embodied in the charge of the court. There is no evidence in this record which would sustain a finding of a jury that the plaintiff was injured by the sudden increase of the speed, the sudden jolt or movement of a moving car while she was alighting from it, and the refusal of the court to permit the jury to find a verdict for the plaintiff on that theory was right, and was the only course that could have been sustained upon the evidence in hand.

The next criticism of the instructions is that in one place in the charge the court told the jury that if the car was suddenly started from a stationary position while the plaintiff was getting off, 'and the conductor or party in charge of the car knew that she was in the act of getting off when the car started,' she was entitled to a verdict against the defendant as a matter of law. It is contended that this instruction submitted to the jury the question whether the conductor or some other party was in charge of the car when the evidence was uncontradicted that the conductor alone was in charge, and that...