Murdock v. Denham

• Decision Date: 02 December 1918
• Docket Number: No. 12932.,12932.
• Parties: MURDOCK v. DENHAM et al.
• Court: Missouri Court of Appeals

206 S.W. 915

MURDOCK v. DENHAM et al.

No. 12932.

Kansas City Court of Appeals. Missouri.

December 2, 1918.

Appeal from Circuit Court, Jackson County.

"Not to be officially published."

Action by J. E. Murdock against B. J. Dunham and others for personal injuries. From an order setting aside a verdict and granting new trial, plaintiff appeals. Affirmed.

E. H. Gamble, of Kansas City, for appellant.

Clyde Taylor and E. E. Ball, both of Kansas City, for respondents.

ELLISON, P. J.

Plaintiff's action is for personal injury received through the alleged negligence of defendant while he was a passenger on one of its street cars. He obtained a verdict in the trial court, which was afterwards set aside and a new trial granted on account of what that court conceived to be error in giving for plaintiff his instruction No. 1. Plaintiff appealed from that order.

It is not directly alleged in plaintiff's petition, as a part of the facts constituting his cause of action, that he was suffering from any crippled condition when he boarded the car. The only averment in that respect was this:

"That prior to such injury [the injury for which this action was brought] plaintiff was in good health and strength other than a then rapidly recovering injury to his right foot."

The negligence charged in the petition is that defendant "carelessly and negligently, suddenly, and violently started said car northward, and ran it violently against and partially around the curve of the track eastward into Eleventh street so as to cause the plaintiff to be suddenly and violently precipitated upon and against parts of said car," so as to injure his leg, etc.

The negligence charged may be divided into two parts: First, a sudden and violent start; and, second, running the car violently against and partially around a curve.

The instruction dropped the latter allegation, and it need not be now considered. But in attempting to submit the first, by his instruction No. 1, plaintiff altogether omitted the negligence charged. After stating defendant's duty to safely carry him "after he entered the car in his crippled condition," etc., the instruction continued in these words:

"If from the evidence you find * * * that before he had taken a seat, said employés negligently and carelessly started the car, and as a result thereof he was thrown down and injured," etc.

There was thus omitted the character of negligence pleaded. The instruction submits the mere starting of the car while the...