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

• Decision Date: 06 February 1912
• Citation: 143 S.W. 1114
• Parties: HARMON v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

143 S.W. 1114

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

St. Louis Court of Appeals. Missouri.

February 6, 1912.

1. CARRIERS (§ 343)—CARRIAGE OF PASSENGERS — INJURIES —CONTRIBUTORY NEGLIGENCE—PLEADING.

Allegations of the answer in a street car passenger's action for personal injuries that whatever injuries plaintiff received, if any, as alleged in the petition, were caused by her own carelessness or negligence in attempting to alight from a moving car, set up the defense of contributory negligence.

2. CARRIERS (§ 344)—CARRIAGE OF PASSENGERS — INJURIES — CONTRIBUTORY NEGLIGENCE.

The defense of contributory negligence is an affirmative defense, which the carrier has the burden of establishing in a street car passenger's action for personal injuries.

3. CARRIERS (§ 314)—CARRIAGE OF PASSENGERS — INJURIES — NEGATIVING CONTRIBUTORY NEGLIGENCE.

A street car passenger, injured in alighting, was not bound to negative contributory negligence by herself.

4. APPEAL AND ERROR (§ 882)—REVIEW— ESTOPPEL TO ALLEGE ERROR.

A carrier, sued for personal injuries to a street car passenger in alighting, by requesting an instruction, which was given, that if plaintiff attempted to alight from the car while it was in motion, and thereby caused or contributed to her injuries, the jury must find for defendant, precluded itself from objecting on appeal to an instruction given for plaintiff that the burden was upon defendant to prove contributory negligence; the carrier in its requested instruction having recognized that contributory negligence was in issue.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by Nancy Harmon against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle & Priest and George T. Priest, for appellant. James J. O'Donohoe, for respondent.

REYNOLDS, P. J.

This is an action for damages for injuries plaintiff received, as it is averred in the amended petition, while she was a passenger on a car of defendant. In that petition it is averred that plaintiff desiring to alight from the car at the corner of Goode and Easton avenues, defendant "did not stop its said car at the intersection of said Goode and Easton avenues, although signalled to do so but did by its employés in charge of said car, negligently cause said car to convey the plaintiff east and past her said point of destination, and did there stop said car between Goode avenue and Whittier street in the said city of St. Louis and invited the plaintiff to alight from said car while the same was so stopped; that while said car was thus stopped and in obedience to said invitation of defendant's employés, and in the presence and sight of its conductor in charge of said car, she proceeded to alight from said car with all proper dispatch and in the exercise of all due care and caution for her own safety, and whilst so doing, said car was negligently and carelessly caused by defendant's employés in charge thereof to start into violent motion with a sudden shock and jerk, whereby the plaintiff was thrown against said car and from the same and upon the street, greatly and permanently injuring her as follows." The injuries are described and are alleged to be permanent. Averring that plaintiff has expended $25 for medical treatment and in the future will be forced to expend for medical treatment and attention $315, she asks damages in the sum of $10,000.

Defendant's answer is as follows:

"Comes now the defendant in the above-entitled cause and for answer to the plaintiff's second amended petition herein filed, denies each and every allegation therein contained.

"Further answering, defendant says that whatever injuries plaintiff received, if any, as in said petition alleged, were caused by her own carelessness and negligence in alighting, or attempting to alight, from a moving car.

"Wherefore, having fully answered defendant asks to be hence dismissed with its costs."

A general denial of each and every allegation contained in this answer was filed by way of a reply.

On trial before the court and a jury a verdict was returned in favor of plaintiff for the sum of $3,000, judgment following. Defendant filing a motion for new trial and saving exception to that being overruled, has duly perfected its appeal to this court.

It is sufficient to say of the evidence in this case that there was testimony introduced by plaintiff tending to prove the averments in her petition and by defendant tending to show the contrary, that of defendant tending to show that when plaintiff attempted to alight from the car running along Easton avenue, it had not come to a stop at Goode avenue but that plaintiff attempted to alight while the car was in motion and was running between Whittier and Goode avenue, Whittier being the next street beyond Goode. There was testimony on the part of plaintiff tending to show the nature and extent of the injuries which she had received and also tending to show that they were permanent in their character.

It is unnecessary to here set out the instructions which were given beyond the second given at the instance of plaintiff and the fifth given at the instance of defendant. The second instruction given at the instance of plaintiff is as follows:

"The court instructs the jury that with respect to the allegations of contributory negligence, set up in the defendant's answer, to wit:

"`Further answering, defendant says that whatever injuries plaintiff received, if any, as in said petition alleged, were caused by her own carelessness and negligence in alighting, or attempting to alight, from a moving car,' the burden of proof rests upon the defendant; that is, the defendant must prove to your satisfaction by a preponderance or greater weight of the evidence that plaintiff did not exercise ordinary care for her own protection."

The fifth instruction given at the instance of defendant is as follows:

"The court instructs you that if you find and believe from the evidence, plaintiff attempted to alight from car while it was in motion and she thereby caused or contributed to cause her injuries, if any, your verdict must be for the defendant."

It is assigned here...