Haskell v. Metropolitan St. Ry. Co.

• Decision Date: 22 January 1912
• Citation: 142 S.W. 1091,161 Mo. App. 64
• Parties: HASKELL v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

142 S.W. 1091

161 Mo. App. 64

HASKELL v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

January 22, 1912.

1. CARRIERS (§§ 320, 347) — INJURIES TO STREET CAR PASSENGERS — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

In an action for injuries to a street car passenger while alighting caused by the sudden starting of the car, evidence held to require submission to the jury of the questions of negligence and contributory negligence.

2. TRIAL (§ 253)—EVIDENCE—INSTRUCTIONS.

Where the petition in an action for injuries by a street car passenger, pleaded a cause of action based on the sudden starting of a car while the passenger was alighting, and the evidence showed that the car had almost stopped when a forward movement occurred throwing the passenger to the ground while attempting to alight, an instruction requiring the passenger to wait until the car stopped before attempting to alight, though the conductor requested her to hurry up, was erroneous as a peremptory direction to find for the carrier though the question of the contributory negligence of the passenger, in attempting to alight while the car was in motion, was for the jury.

3. CARRIERS (§ 347)—STREET CAR PASSENGERS— CONTRIBUTORY NEGLIGENCE.

It is not negligence per se for a street car passenger to attempt to alight from a car in motion, unless the risk involved in the act, because of the speed of the car, appears to be so great that an ordinarily prudent person would not incur it, and the question of negligence is for the jury.

Appeal from Circuit Court, Jackson County; Walter E. Powell, Judge.

Action by Rebecca Haskell against the Metropolitan Street Railway company. There was a verdict for defendant, and from an order granting a new trial for error in the instructions, it appeals. Affirmed.

John H. Lucas and James E. Nugent, for appellant. E. S. Gant and Chas. M. Miller, for respondent.

JOHNSON, J.

Plaintiff sustained personal injuries while she was alighting from a street car on which she was a passenger, and claims in her petition that her injuries were caused by negligence of defendant in suddenly starting the car with sufficient violence to throw her to the pavement from the rear platform. The petition alleges "that on or about the 15th day of May, 1909, at about 9 o'clock p. m. of said day she paid her fare and was a passenger riding on one of defendant's street cars, which was at the time being operated by the defendant on Fifteenth street in Kansas City, Mo.; that when said car had passed on and over Fifteenth street at the intersection of Kensington avenue, a public street, the motorman and conductor, who were the agents and servants of the defendant in charge of said car, were duly notified that plaintiff desired to get off the car at the usual stopping place on Fifteenth street at the intersection of Cypress avenue, a public street where it was the duty of defendant to stop its car; that the usual signal was given in ample time for said stop to have been made by the exercise of ordinary care and diligence, but the defendant, through its servants and agents in charge of said car, carelessly and negligently failed and neglected to stop the car as it was its duty to do at said stopping place, and, while the car was slowly moving at or about the said usual stopping place, the conductor in charge of the car carelessly and negligently told and instructed the plaintiff to get off the car, and plaintiff, believing the car had stopped, or was in the act of stopping, proceeded to get off the car, and while she was in the act of alighting from the car, the car was carelessly and negligently started forward with a sudden, unusual, and violent jerk, thereby throwing the plaintiff to the pavement and severely injuring her."

The answer is a general denial and a plea of contributory negligence. The trial of the cause resulted in a verdict for defendant, but afterward the court sustained plaintiff's motion for a new trial on the ground "that the court committed an error in giving the instructions for defendant." The cause is before us on the appeal of defendant from the order granting plaintiff a new trial.

The court overruled the peremptory instructions offered by defendant both at the close of plaintiff's evidence and...