Parker v. Metropolitan Street Railway Company
| Decision Date | 07 March 1910 |
| Citation | 126 S.W. 759,140 Mo.App. 703 |
| Parties | JAMES PARKER, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas and Ben. F. White for appellant.
(1) The court erred in the admission of the testimony of Dr Krimminger in permitting the witness to state that the injury complained of did produce a certain result upon the plaintiff's nervous system. This was the very question to be passed upon by the jury. Taylor v. Railroad, 185 Mo. 239; Glasgow v. Railroad, 191 Mo. 358; Thomas v. Railroad, 125 Mo.App. 131. (2) Plaintiff's first instruction enlarges the issues made by his petition. It directs a verdict if the car was started forward "without giving him a reasonable time to get upon the platform or enter said car." The petition counts merely on his not having time to get on the platform. Roscoe v. Railway, 202 Mo. 576; Peterson v Railway, 211 Mo. 498; Hamilton v. Railway, 114 Mo.App. 504; Kirkpatrick v. Railway, 211 Mo. 68.
Shewalter & Carmody for respondent.
There was no error in the admission of the testimony of Dr. Krimminger that the injury produced certain results, for several reasons: first, a party cannot induce the lower court to make a ruling that the law is one way, and then insist on appeal that the ruling so made on the party's own insistence is error, and that the law is the other way. Parties will not be permitted to assume inconsistent positions. Bensieck v. Cook, 110 Mo. 173; McGinnis v. Printing Co., 122 Mo.App. 236; Dice v. Hamilton, 178 Mo. 90; Tower v. Compton Hill Company, 192 Mo. 379; Green v. St. Louis, 106 Mo. 458. Second, the objection was too late. Thomas v. Railway, 125 Mo.App. 135.
Defendant operates electric street cars on the streets in Independence, Missouri and plaintiff attempted to take passage on one of them when he was thrown therefrom, which he alleges was caused by the negligent starting of the car. He recovered judgment in the trial court.
It appears that plaintiff awaited a car at a regular stopping place on a street crossing, and that as one approached he signalled it to stop. That as it came to a stop he took hold of the handrail, put one foot on the lower platform step and had just raised his other foot from the ground when the motorman started the car forward, throwing him off and onto the ground, whereby he was injured. It appears that he had a dinner pail and a small empty tin bucket in one hand and that while struggling to maintain himself on the car he was carried about sixty feet before he fell to the ground.
The trial court properly refused instruction "A" offered by defendant. If for nothing else, it is drawn on a theory that the motorman intended to pass plaintiff, who was on the south side of the street, and cross over to the north side, where he would stop for him. There was no evidence of this. There was evidence for defendant tending to show that the north side of the street was the usual stopping place; but in this instance it was shown that the motorman, in answer to plaintiff's signal, had either actually stopped or was so near stopped, it was difficult to tell. It is apparent from the testimony of the motorman himself, introduced by defendant, that he was not intending to pass plaintiff but that he had either actually stopped or had about stopped. He said "it had not come quite to a stop, but had slowed down very slow." And the conductor testified that "I don't think the car came to a dead stop, that's my recollection, it did not."
The case shows that while the north side of the street may have been the usual stopping place, yet it was not always so, and in this instance the plaintiff was on the south side and the motorman had either actually stopped the car for him or was doing so when plaintiff, possibly before it came to a "dead stop" got upon the step and then the power was turned on, starting the car forward so as to throw him off.
We think the criticism of the action of the court in giving and refusing instructions, much too critical for practical purposes. Those given for plaintiff did not go beyond the allegations of the petition. The expression "get upon the platform or enter the car" was disjunctive. It could not have been misunderstood, nor, under the evidence, could it...
To continue reading
Request your trial