Hooper v. Metropolitan St. Ry. Co.

• Decision Date: 06 May 1907
• Citation: 125 Mo. App. 329,102 S.W. 58
• Parties: HOOPER v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

102 S.W. 58

125 Mo. A. 329

HOOPER v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

May 6, 1907.

1. CARRIERS — INJURY TO PASSENGER — PROXIMATE CAUSE OF INJURY.

Where a street car conductor, in passing from a trailer to the grip car, neglected to hook into its place a chain, which performed the office of a gate between the trailer and grip car, and a passenger who was standing on the platform of the trailer, on a sudden jerk of the car, was thrown forward so that he fell through the open place where the chain should have been, whereby he was injured, the absence of the chain, and not the jerk of the car, was the proximate cause of the injury.

2. TRIAL — INSTRUCTIONS — NECESSITY OF REQUESTS.

Failure to instruct on the issue of negligence, such issue not being embraced in the instructions asked by counsel, amounted to mere nondirection, not constituting error.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by A. C. Hooper against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

John H. Lucas & Frank G. Johnson, for appellant. Boyle, Guthrie & Smith, for respondent.

JOHNSON, J.

Action to recover damages for personal injuries alleged to have been sustained in consequence of the negligence of defendant. Plaintiff recovered judgment in the sum of $250, and defendant appealed.

The injury occurred on November 20, 1903, while plaintiff was a passenger on a cable train operated by defendant on one of its lines of street railway in Kansas City. The train consisted of a grip car and trailer. Plaintiff boarded the latter vehicle; and owing to its crowded condition, stood on the front platform, which was provided in front and at the end opposite the entrance with an iron railing. In the front railing, opposite the aisle of the car, a narrow gap was left for the purpose of affording a passageway between the trailer and grip car. An iron chain detachable at one end performed the office of a gate in this open space, and it was the duty of the trainmen to keep the chain in place. On this occasion the conductor, in passing from the trailer to the grip car, neglected to hook the chain in its proper place, and in consequence the gap was left open. Plaintiff did not observe this omission of the conductor, and, while standing on the platform, was suddenly thrown forward by a violent and unexpected lurch of the car in such manner that he fell through the open place thus left, and was injured. The failure of the conductor to fasten the chain is the specific act of negligence on which is founded the cause of action pleaded in the petition.

It is argued by defendant that the action must fail for the reason that the producing cause of the injury is to be found in the sudden and violent jerk of the car, and not in the neglect of the conductor to fasten the chain. The car being crowded, plaintiff was riding on the platform on the implied invitation of defendant, and obviously one of the main purposes intended to be served in inclosing the platform with a guard rail was the protection of passengers who might find it necessary to occupy it during their transportation. It appears that the sudden jerk of the car was one belonging to the class of unavoidable and...