Nolan v. Metropolitan St. Ry. Co.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBrown
Citation157 S.W. 637
PartiesNOLAN v. METROPOLITAN ST. RY. CO.
Decision Date28 February 1913
157 S.W. 637
NOLAN
v.
METROPOLITAN ST. RY. CO.
Supreme Court of Missouri, Division No. 1.
February 28, 1913.
Rehearing Denied March 15, 1913.
Motion to Set Aside Order Overruling Respondent's Motion for Rehearing Denied May 31, 1913.

1. CARRIERS (§ 245) — INJURIES TO PASSENGERS — PETITION — PLEADING ULTIMATE FACTS.

Under the Code requirement that only ultimate facts shall be pleaded, one who sues a carrier for a violation of its duty to a passenger need not set out the facts by which the relation of carrier and passenger was brought about.

2. PLEADING (§ 433) — AIDER BY VERDICT — PETITION — ACTION FOR INJURY TO PASSENGER.

Under Rev. St. 1909, § 1831, requiring pleadings to be liberally construed with a view to substantial justice, section 1818, providing that a pleader need not state evidence, and section 1850, requiring courts to disregard any error which does not affect the substantial rights of the parties, and forbidding a reversal for such error, a petition for injuries received by one attempting to board a street car, which states that plaintiff was entering the car to become a passenger, is sufficient to sustain a judgment after verdict.

3. EXCEPTIONS, BILL OF (§ 8) — SETTING FORTH EXCEPTIONS — OVERRULING MOTION FOR NEW TRIAL — SUFFICIENCY.

Where the bill of exceptions stated that defendant excepted to the overruling of its motion for new trial and motion in arrest of judgment, it sufficiently stated an exception to the overruling of the motion for new trial, especially where the language is the same as that used by the court in its order.

4. CARRIERS (§ 315) — INJURIES TO PASSENGERS — VARIANCE.

Where a petition for injury to one boarding a street car alleged that the place of the accident was at or near a street intersection, and the evidence showed that it was on one of the streets, but at a considerable distance from its intersection with the other, but there was no question as to the actual place of the occurrence, there was not such a variance as to call for the application of the curative provisions of Rev. St. 1909, § 1846.

5. CARRIERS (§ 236) — CARRIAGE OF PASSENGERS — DUTY TO CARRY.

A street car company, acting as a public carrier for passengers, is required, subject to reasonable rules, and up to the reasonable limits of its capacity, to carry without discrimination all who present themselves.

6. WORDS AND PHRASES — "INVITATION" — "OFFER" —"ACCEPTANCE."

The "invitation" of a carrier extended to the public to become passengers consists in the exhibition of a readiness to perform its duties. The "offer" of a potential passenger is an indication to the carrier that he desires to ride, and the "acceptance" is expressed by the carrier affording him an opportunity to do so.

7. CARRIERS (§ 247) — CARRIAGE OF PASSENGERS — COMMENCEMENT OF RELATION.

When one has availed himself of the facilities afforded by a carrier of passengers by entering upon the necessary and convenient use of them, the relation of carrier and passenger exists.

8. CARRIERS (§ 246) — INJURIES TO PASSENGERS — EVIDENCE — SUFFICIENCY.

Evidence of injury to a person who was attempting to board a street car held sufficient to show an acceptance of plaintiff's offer to become a passenger, though the place was not one where passengers were usually received.

9. CARRIERS (§ 247) — CARRIAGE OF PASSENGERS — INVITATION.

A street car company may extend permission to become a passenger in any way calculated to notify the passenger of that fact, without bringing its car to a dead stop.

10. CARRIERS (§ 247) — CARRIAGE OF PASSENGERS — COMMENCEMENT OF RELATION.

One who attempts to enter a car which has been slowed by the motorman upon his signal to a speed of two miles per hour becomes a passenger.

11. CARRIERS (§ 347) — INJURIES TO PASSENGERS — CONTRIBUTORY NEGLIGENCE.

The question of the contributory negligence of a strong man, 28 years old, in attempting to board a car while in motion is for the jury, where the evidence as to the speed of the car is conflicting.

12. APPEAL AND ERROR (§ 1003) — REVIEW — MATTERS CONSIDERED.

Under Rev. St. 1909, § 2082, forbidding the Supreme Court to reverse a judgment,

[157 S.W. 638]

unless for error materially affecting the merits, while the court will not set aside a verdict because it is contrary to the weight of the evidence, it must be satisfied in such a case that the instructions are so unexceptionable as to have fairly presented the issues.

13. CARRIERS (§ 321) — INJURIES TO PASSENGERS — INSTRUCTION — DUTY TO PASSENGERS.

An instruction which states the duty of a carrier to passengers without defining "passenger" is erroneous, in an action for injuries to one attempting to board a street car, where the evidence was conflicting as to whether the car was slowed up to receive him.

14. TRIAL (§ 296) — INSTRUCTIONS — SUBSEQUENT INSTRUCTION CURING ERROR.

The error in the instruction was not cured, where a subsequent instruction closed with the clause, "but you cannot find for the plaintiff, except you find the facts to be as stated" in a previous correct instruction, since that clause is limited to the instruction in which it occurs.

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

Action by Charles W. Nolan against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This is a suit for personal injury alleged to have been suffered by plaintiff through the negligence of the motorman in operating an electric street car on defendant's street railway in Kansas City. That part of the petition which relates to the issue in this appeal is as follows: "That on or about the 9th day of September, 1907, plaintiff attempted to board one of defendant's westbound cars on said Thirty-First street at or near the intersection of said Thirty-First street with College avenue, for the purpose of becoming a passenger thereon, and that while he was in the act of so doing defendant so carelessly and negligently ran, operated, and managed said car as to cause plaintiff to be thrown therefrom and upon said Thirty-First street, and caused him to be run over by said car and thereby caused him to be greatly injured." Damages were asked in the amount of $35,000. The answer was a general denial and general plea of contributory negligence.

The accident happened on Thirty-First street, which extended east and west, and was occupied by a double-track street railway operated by defendant with electric power. The north track was used by the west-bound traffic, and the south track by east-bound traffic, after the usual manner of American railways. The street was unpaved from Indiana avenue on the east to Bellefontaine avenue on the west, say three or four blocks. For this entire distance, and extending a distance of three city blocks south from Thirty-First street, the land was fenced in a single field, which was called at the trial "the pasture," and was in grass, with a few trees. The plaintiff was a landscape gardener, 28 years old, something over 6 feet in height, weighing about 215 pounds, and was strong and active. He had been examining the sod in the pasture, had purchased some of it, and wanted to return to his work at Thirty-First street and Woodland avenue, about ten blocks west. There were no houses on the south side of Thirty-First street between Indiana and Bellefontaine and only one or two on the north side. None of the streets were paved in that vicinity. The plaintiff, who was his own sole witness as to the immediate circumstances of the accident, said he just came up to the wire fence along the south side of Thirty-Third street opposite to a traveled road that turned into it both ways, on the north side. He pressed down the wire, stepped over the fence, and saw the car coming about 100 feet to the east, and signaled with his right hand for it to stop. The motorman "just nodded his body — just nodded." He was then about 25 feet from the south track. The front vestibule where the motorman stood, as well as the rear one, was open, and there were no gates to keep one from getting on or off, and he could see the motorman as plain as he could see anything. They were looking at each other. He walked over to the north rail of the south track and stood there. When he gave the signal, he saw the motorman make a turn like he was turning the motor, and reached over with his right hand. The power relaxed and gradually died out. He could tell this from the noise or buzz of the car. When the car had got to a point about 20 feet east of him, "it had," in the words of the witness, "slowed down quite a bit; it was not running, I would not say, over a couple of miles an hour. A man could easily get on it if it would keep on slowing." Continuing the substance of plaintiff's statement in the first person as it is condensed in the appellant's brief, he said: "When I reached the north rail of the south track, I gave him another signal of the same kind, just in a way to be sure of it. The car came on, and when I gave this signal I stepped across from that rail over to where I could get on the car. The car was running at the same rate of speed. I stepped over there to wait until where I could get on, and then I would step on; I got hold with both hands and stepped on. I should say the car was running something like two miles an hour. I stepped my right foot on the step and reached up and caught hold with this hand. I didn't get a very good hold, but when the car went on the car just jumped; caught hold of the car with the right hand

[157 S.W. 639]

on the handle of the body of the car; my right foot was on the step. My left hand just had caught hold of the other handle, the handhold on the side of the vestibule; did not get a firm hold; just got my fingers on the handle and the car started; it started with a jerk; that is what pulled this hand loose. All those cars start with a jerk; it jerked this hand loose, and I went with my back...

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15 practice notes
  • Foster v. Chicago, Burlington & Quincy Railroad Co., No. 26782.
    • United States
    • United States State Supreme Court of Missouri
    • March 2, 1929
    ...it was burned." [Thomasson v. Insurance Co., 217 Mo. 485, 497, 116 S.W. 1092. See also Nolan v. Railroad, 14 S.W.2d 574 250 Mo. 602, 614, 157 S.W. 637; Hardy v. Lewis Automobile Co. (Mo. App.), 297 S.W. 169, 170, and cases VI. Finally, it is contended that the verdict is grossly excessive i......
  • Ashby v. Illinois Term. R.R. Co., No. 24924.
    • United States
    • Missouri Court of Appeals
    • November 7, 1939
    ...v. Express Co., 266 Mo. 633, 182 S.W. 981; Goebel v. United Railways Co. (Mo. App.), 181 S.W. 1051, 1053; Nolan v. Railroad, 250 Mo. 602, 157 S.W. 637; Sturgis v. K.C. Railways Co. (Mo. App.), 228 S.W. 861; Dorton v. K.C. Railways Co., 204 Mo. App. 262, 224 S.W. 30; Gray v. Phillips Bldg. C......
  • Moses v. Independence, Mo. & K.C. Pub. Serv. Co., No. 20548.
    • United States
    • Court of Appeal of Missouri (US)
    • June 11, 1945
    ...389, l.c. 391, 392; Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W. (2d) 286, l.c. 290; Nolan v. Metropolitan St. Ry. Co., 250 Mo. 602, 157 S W. 637, l.c. 641; Crawford v. Kansas City Stock Yards Co., 215 Mo. 394, 114 S.W. 1057, 1062. (c) Plaintiff's testimony was not contradictory and sel......
  • Breen v. United Rys. Co. of St. Louis, No. 19061.
    • United States
    • United States State Supreme Court of Missouri
    • June 4, 1918
    ...to the duty which defendant owed the plaintiff at the time and place of accident. The case of Nolan v. Railroad, 250 Mo. loc. cit. 622, 157 S. W. 637, relied on by appellant, is without application to the present controversy. In the Nolan Case there was a sharp controversy as to whether the......
  • Request a trial to view additional results
15 cases
  • Foster v. Chicago, Burlington & Quincy Railroad Co., No. 26782.
    • United States
    • United States State Supreme Court of Missouri
    • March 2, 1929
    ...it was burned." [Thomasson v. Insurance Co., 217 Mo. 485, 497, 116 S.W. 1092. See also Nolan v. Railroad, 14 S.W.2d 574 250 Mo. 602, 614, 157 S.W. 637; Hardy v. Lewis Automobile Co. (Mo. App.), 297 S.W. 169, 170, and cases VI. Finally, it is contended that the verdict is grossly excessive i......
  • Ashby v. Illinois Term. R.R. Co., No. 24924.
    • United States
    • Missouri Court of Appeals
    • November 7, 1939
    ...v. Express Co., 266 Mo. 633, 182 S.W. 981; Goebel v. United Railways Co. (Mo. App.), 181 S.W. 1051, 1053; Nolan v. Railroad, 250 Mo. 602, 157 S.W. 637; Sturgis v. K.C. Railways Co. (Mo. App.), 228 S.W. 861; Dorton v. K.C. Railways Co., 204 Mo. App. 262, 224 S.W. 30; Gray v. Phillips Bldg. C......
  • Moses v. Independence, Mo. & K.C. Pub. Serv. Co., No. 20548.
    • United States
    • Court of Appeal of Missouri (US)
    • June 11, 1945
    ...389, l.c. 391, 392; Mitchell v. Wabash Ry. Co., 334 Mo. 926, 69 S.W. (2d) 286, l.c. 290; Nolan v. Metropolitan St. Ry. Co., 250 Mo. 602, 157 S W. 637, l.c. 641; Crawford v. Kansas City Stock Yards Co., 215 Mo. 394, 114 S.W. 1057, 1062. (c) Plaintiff's testimony was not contradictory and sel......
  • Breen v. United Rys. Co. of St. Louis, No. 19061.
    • United States
    • United States State Supreme Court of Missouri
    • June 4, 1918
    ...to the duty which defendant owed the plaintiff at the time and place of accident. The case of Nolan v. Railroad, 250 Mo. loc. cit. 622, 157 S. W. 637, relied on by appellant, is without application to the present controversy. In the Nolan Case there was a sharp controversy as to whether the......
  • Request a trial to view additional results

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