Kirn v. Harvey

• Decision Date: 02 December 1918
• Docket Number: No. 12745.,12745.
• Citation: 208 S.W. 479,200 Mo. App. 433
• Parties: KIRN v. HARVEY et al.
• Court: Missouri Court of Appeals

208 S.W. 479

200 Mo. App. 433

KIRN v. HARVEY et al.

No. 12745.

Kansas City Court of Appeals. Missouri.

December 2, 1918.

Appeal from Circuit Court, Jackson County; Daniel D. Bird, Judge.

Action by Anna Kirn against Ford F. Harvey and others, resulting in verdict for plaintiff. From order granting new trial, plaintiff appeals. Affirmed.

Reinhardt & Schibsby, of Kansas City, for appellant.

Ben T. Hardin, of Kansas City, for respondents.

ELLISON, P. J.

This action is for personal injury. Plaintiff obtained a verdict in the trial court. That court afterwards granted a new trial on the ground of error in an instruction.

It was alleged in the petition that plaintiff was a passenger on one of defendant's cars, and that after signaling for the car to stop, she arose from her seat and went to the rear platform for the purpose of alighting, and was thrown to the street and injured.

There was an allegation of general negligence, which need not be considered, since it was followed by a charge of specific negligence. The specific negligence consists of two connected acts, without either of which she would not have fallen from the car and would not have been injured. The allegation was in these words:

"Plaintiff states that her said injuries are a direct and proximate result of the defendant's negligence in failing to keep said track and roadbed in proper condition and failing to keep said doors between said platform and steps closed while said car was in motion."

If we may say that one of these acts was more the cause of her injury than another, it was the failure to keep the vestibule doors closed. For, preceding these specific allegations, we find this:

"That said car upon which the plaintiff was a passenger was equipped with doors between the platform and the steps leading to the street, but that defendant negligently failed to keep said doors closed while the said car was in motion; that it had been the custom and general practice of passengers on defendant's cars, after having given the signal to stop, to step upon the platform of the car preparatory to alighting when the car came to a full stop, which custom and practice was well known to, and encouraged by, the defendant. That the plaintiff, following the usual and ordinary custom and practice aforesaid, stepped upon the platform preparatory to alighting, and while plaintiff was standing on said platform, and while the car was still in motion, the said car gave an unusual and violent lurch, throwing the plaintiff violently to the pavement, and caused the injuries hereinafter complained of."

But plaintiff's first instruction, purporting to cover the whole case and direct a verdict, omits entirely to submit the hypothesis of...