Gilson v. Jackson Cnty. Horse Ry. Co.

• Decision Date: 31 October 1882
• Citation: 76 Mo. 282
• Parties: GILSON v. THE JACKSON COUNTY HORSE RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

76 Mo. 282

GILSON

v.THE JACKSON COUNTY HORSE RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

Wells H. Blodgett, Chas. A. Winslow and Jno. W. Tarsney for appellant.Tichenor & Warner and Belch & Silver for respondent.

HENRY, J.

The plaintiff's suit is to recover damages for personal injuries, alleged to have been caused by the negligence of the defendant. As his cause of action, it is alleged in his petition: “That on or about the 29th day of December, 1877, plaintiff entered one of defendant's cars as a passenger, for the purpose of being conveyed from one point to another in Kansas City, and that he paid the usual fare therefor; that before arriving at the point to which defendant agreed to carry him, the said car of defendant, by reason of the carelessness and negligence of the driver thereof, ran off the track, whereupon said driver ordered and compelled the passengers therein to get out of said car and walk while he drove said car along in order to get the same upon the track again; that plaintiff got out of said car in obedience to the order of said driver, along with the other passengers, and walked upon the track of defendant behind said car while the driver drove the same along in his endeavor to get the same upon the track; that while so walking, the rear door of said car fell from its place and dropped outward, striking plaintiff upon his leg near the knee, knocking him down and driving a piece of glass into his leg, and that said door fell because said car was defective, and had been suffered by defendant to get out of repair; that said door was not securely and properly fastened to the car, but had been suffered by defendant to be out of repair, all of which was known to defendant, or might have been known to it by the exercise of ordinary care; that by reason of said injuries plaintiff had been confined to his bed, endured great suffering and became permanently disabled; that by reason of said injuries he had incurred expenses in the sum of $250 in endeavoring to be cured; therefore he prayed judgment in the sum of $5,000.” The answer is a general denial, and also specially that whatever injuries plaintiff may have sustained were caused by his own negligence. The replication is a general denial of the new matter pleaded in the answer. At the trial of the cause plaintiff obtained a judgment, from which defendant has appealed.

Plaintiff for himself testified that he entered the car and paid his fare; that it ran off the track and the driver ordered the passengers to get out, so that he could get it back on the track; that he got out and walked beside the car, and near the end of it, the door fell off edgeways and struck him on his foot. The driver said he had been telling them that the door needed fixing, and that it was always coming down. Plaintiff's attention was called to the door before he got out of the car at the corner of Mulberry street, where some persons were getting in the car, when the door came out of its place and the driver set it in again. Plaintiff had also noticed the car door about a month before, when it came off, and the driver set it in. On cross-examination, he said he could not swear it was the same car whose door he saw come off a month before.

The defendant's testimony all tended to show that the car in question and the car door were in good condition, and to contradict the plaintiff's testimony as to the knowledge of the driver and the company that it needed repairs.

The court, for plaintiff, instructed the jury as follows:

1. The jury are instructed that defendant was bound to the utmost care and skill in reference to its cars as was necessary so far as its passengers were concerned, and if you believe from the evidence that plaintiff on or about the 29th day of December, 1877, entered the car of defendant for the purpose of being conveyed from one point to another, and paid his fare therefor, and if you believe the door of said car was defective, or was out of repair, or was not secured or properly fastened, and it fell by reason thereof, and that plaintiff was hurt by such fall, then he must recover, unless you believe such defects or lack of repair or such insecurity in the fastenings could not have been remedied by the utmost care and skill on the part of defendant as was necessary.

The jury are instructed that if you believe from the evidence that on or about the 29th day of December, 1877, plaintiff entered the car of defendant, to be conveyed from one point to...