Paul v. Metropolitan St. Ry. Co.

• Decision Date: 14 June 1915
• Docket Number: No. 11601.,11601.
• Parties: PAUL v. METROPOLITAN ST. RY. CO. et al.
• Court: Missouri Court of Appeals

179 S.W. 787

PAUL v. METROPOLITAN ST. RY. CO. et al.

No. 11601.

Kansas City Court of Appeals. Missouri.

June 14, 1915.

On Motion for Rehearing, October 4, 1915.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially reported."

Action by Laura E. Paul against the Metropolitan Street Railway Company and others for personal injuries. From a judgment for plaintiff, defendants appeal. Affirmed.

John H. Lucas and Bruce Barnett, both of Kansas City, for appellants. Claude T. Goble, of Kansas City, for respondent.

JOHNSON, J.

In alighting from a street car operated by defendants on the Brooklyn line in Kansas City, plaintiff was thrown to the pavement and injured. She sued to recover her damages on the ground that her injury was caused by negligence of defendants in prematurely starting the car while she was in the act of alighting from it at a regular stopping place where it had stopped to receive and discharge passengers. The answer is a general denial. Verdict and judgment were for plaintiff in the circuit court, and defendants appealed.

The evidence of plaintiff tends to show that the car on which she was a passenger stopped at Tenth street and Forest avenue to take on and let off passengers; that plaintiff proceeded as expeditiously as possible to the rear vestibule, and was in the act of stepping to the street from the last step, when the car was suddenly started, in obedience to a signal from the conductor, and plaintiff was thrown to the pavement and injured.

The evidence of defendants is to the effect that some one in the vestibule accidentally stepped on plaintiff's skirt when she was stepping from the platform of the vestibule and caused her to fall, and that the car did not start until the conductor had helped her to her feet and she proceeded on her way home.

Defendants do not contend that plaintiff's evidence is insufficient to sustain the pleaded cause of action, and the only points they present for our determination are directed against the first instruction, given at the request of plaintiff. The principal objection to the instruction is that:

"It ignores the element as to whether defendants' servants knew, or by the exercise of proper care could have known, that plaintiff was alighting from the car at the time the car started forward."

We said of this precise objection to a similar instruction which was urged in Alten v. Railway, 133 Mo. App. loc. cit. 430, 113 S. W. 691:

"It would sufficiently answer the objection to say that, since all of the evidence of defendant is to the effect that the conductor did observe plaintiff while she was in the act of alighting, the question omitted from the instruction was not a debatable issue, and there is neither rule nor reason for requiring the submission to the jury of admitted facts, however material they may be. But defendant's conclusion is unsound for another reason. The witnesses for both parties agree that the car had stopped at the regular stopping place and passengers were getting on and off. In such situation, it was the duty of the conductor, before giving the signal to start, to know whether or not a passenger was alighting. If plaintiff was in the act of stepping from the platform, it would be no excuse for the conductor to say that he did not know that fact. In the exercise of reasonable care, he was bound to know it. Green v. Railway, 122 Mo. App. 647 ; Nelson v. Railway, 113 Mo. App. 702 ; Hurley v. Railway, 120 Mo. App. 262 . The question under discussion was not material to the cause of action and it was not essential that the jury should consider it."

We see no reason for changing the views thus expressed, which we find sufficiently answers all of defendants' criticisms of the instruction. There is no error in the case, and the judgment is affirmed. All concur.

On Motion for...