Murphy v. Metropolitan St. Ry. Co.

• Decision Date: 06 May 1907
• Citation: 102 S.W. 64,125 Mo. App. 269
• Parties: MURPHY v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

102 S.W. 64

125 Mo. A. 269

MURPHY v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

May 6, 1907.

1. CARRIERS — STREET RAILWAYS — INJURY TO PASSENGER — PLEADING.

In an action for injury to a passenger while alighting from a street car, plaintiff's omission to plead that the car stopped at a regular station did not restrict proof to a stop at a point other than a regular stopping place.

2. SAME — STOPPING PLACES.

Where one in charge of a street car knows a passenger is alighting, the duty to him is the same whether the stop is made at a regular stopping place or not.

3. SAME — OPPORTUNITY TO ALIGHT — SUFFICIENCY.

A street car conductor has no right to assume because the car has been stopped for a time reasonably sufficient to enable passengers to alight that they have alighted, but is charged with the duty to see that no one is in the act of alighting when the car starts.

4. APPEAL — REVIEW — HARMLESS ERROR.

In an action for injury to a street car passenger while alighting, any error in an instruction in including in the hypothesis upon which she could recover the fact that the car was started before she had "a reasonably sufficient time to leave said car" was against her, and harmless to defendant.

5. TRIAL — INSTRUCTIONS — ISSUES NOT SUSTAINED BY PROOF.

In an action for personal injury, it was not error against defendant to instruct on contributory negligence, though there was no evidence tending to show plaintiff's negligence, where defendant pleaded contributory negligence and did not attempt to withdraw that issue.

6. SAME — OBJECTIONS TO QUESTIONS — SCOPE — UNRESPONSIVE ANSWERS.

An objection to a question merely advises the court that the propriety of the question and of a responsive answer thereto is put in issue, and does not reach unresponsive statements included in the answer, which may only be put in issue by motion to strike out.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by the Metropolitan Street Railway Company against Margaret C. Murphy. From a judgment for plaintiff, defendant appeals. Affirmed.

John H. Lucas and Frank G. Johnson, for appellant. Charles R. Cooksey and Bird & Pope, for respondent.

JOHNSON, J.

Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. The judgment was for plaintiff in the sum of $1,229, and the cause is here on the appeal of defendant.

The evidence of plaintiff, in substance, shows: That on April 30, 1904, at about 10 o'clock p. m., she became a passenger on an electric car operated by defendant on the Indiana avenue line of its street railway system in Kansas City. She boarded the car at Thirteenth and Main streets, and her destination was Nineteenth street and Tracy avenue. The car traveled in an easterly direction while running on Nineteenth street, and, as it approached Tracy avenue, plaintiff first pushed an electric button to give the signal to stop, and, finding that the bell did not ring, turned to a conductor who was standing in the rear part of the car, and asked him to give the signal. He gave it, and in response thereto the motorman brought the car to a full stop at Tracy avenue, but, on account of the darkness, the witnesses for plaintiff could not say at what particular point on the crossing. Plaintiff waited until the car came to a standstill before leaving her seat, and then proceeded with due dispatch to depart. She reached the rear vestibule, and was in the act of stepping from the platform to the first step when the car started forward suddenly, and she was thrown to the street and injured. Just as the car started some one rang the bell three times, which was the signal for an emergency stop, and the motorman immediately applied the brakes and stopped the car when it had run perhaps three or four feet. There was no direct evidence offered by plaintiff to the effect that the point at which the car first was stopped was a regular stopping place for the discharge and reception of passengers. The conductor in charge of the car was in the front part thereof, collecting fares, during the occurrence, and was not the one whom plaintiff requested to give the signal to stop. On behalf of defendant, the evidence tends to show that as the car approached Tracy avenue a signal to stop was given, and the conductor in charge of the car testifies that he was the person who gave the signal, and that it was given for the purpose of permitting passengers to alight. In obedience thereto, the car did come to a full stop at the east line of Tracy avenue, and several passengers alighted from it. One of the witnesses, who claims to have observed plaintiff, states that two departing passengers preceded and two followed her. All of the witnesses for defendant agree in the statement that plaintiff attempted to step to the street before the car had come to a stop and while it was going at the rate of two or three miles per hour. The motorman, who was called by defendant as a witness, testified, in effect, that he brought the car to a standstill at the east line of Tracy avenue, the usual stopping place. The negligence charged in the petition is "that on or about April 30, 1904, and at about the hour of 10:30 p. m. of said day, plaintiff was a passenger on an electric car of said defendant, east-bound on said East Nineteenth street, and, when said car reached a point at or near said East Nineteenth street and Tracy street, it came to a stop and plaintiff started to alight therefrom, and, while plaintiff was in the act of alighting therefrom to the street or ground, said car was carelessly and negligently started or allowed to move forward by said defendant and its agents, servants, and employés in charge of said car, whose names are unknown to plaintiff, although said defendants, its servants, agents, and employés knew, or by the exercise of reasonable care should have known, that plaintiff was in the act of alighting from said car, and plaintiff by reason of the said...