Peck v. St. Louis Transit Co.
| Decision Date | 23 December 1903 |
| Parties | PECK, Appellant, v. ST. LOUIS TRANSIT COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.
Affirmed.
Gilliam & Smith for appellant.
Plaintiff's case is based upon the negligent act of defendant when, after bringing its car to a stop (or, as claimed by defendant's witnesses, almost to a stop) at the crossing of Grand avenue and Laclede avenue, while plaintiff was in the act of alighting from said car, defendant carelessly and negligently suddenly started said car, throwing the plaintiff to the ground in a violent manner. That plaintiff was severely and permanently injured, was not contested by defendant. Plaintiff also asks reversal on account of improper instructions given. (1) Defendant's three instructions were, when taken together, confusing and misleading -- first in mixing the allegation of the stopping of the car with the allegation of negligence and making it part of the allegation of negligence, and in giving it undue prominence; then by asserting a burden of proof thereon throughout the case without mention of any burden of proof on defendant of contributory negligence; then by requiring plaintiff to prove the case "as above stated," that is, that the car stopped; and then, in the second instruction, amplifying the doctrine of her injuries being sustained by her leaving the car before it stopped still; and then, in the third instruction, holding that, if the car was in motion when she attempted to get off, there was no evidence of negligence on the part of defendant. The combination of the three as thus drawn was grossly misleading and confusing to the jury. Plaintiff's evidence showing she was a passenger in good health, and was injured by being thrown from the car when alighting, certainly so far shifted the burden of proof that defendants were called upon for explanations. The first instruction was wrong, and, when construed with the second and third, clearly misleading. Ochs v. Railroad, 130 Mo. 27; Wise v. Railroad, 85 Mo. 178; Conway v. Reed, 66 Mo. 346. (2) Defendant's second instruction is misleading, because if it is an instruction on contributory negligence it amounts to a peremptory instruction that if the car was moving that was in itself fatal to plaintiff's claim; it fails to point out to the jury that plaintiff's acts must be the proximate cause of her injury or directly contributing to her injury; it distinctly fails to mention in any way the effect on plaintiff's rights and plaintiff's situation of a sudden starting of the car, and tells the jury that the attempt to alight while the car was in motion and injury ensuing barred plaintiff's claim. It is totally insufficient in statement of facts that would amount to negligence, and it is directly in the teeth of the following cases: Wyatt v. Railroad, 55 Mo. 485; S. C., 62 Mo. 408; Richmond v. Railroad, 49 Mo.App. 104; Hickman v. Railroad, 91 Mo. 435; Murphy v. Railroad, 43 Mo.App. 342. (3) Defendant's third instruction ignored all of plaintiff's evidence as to the sudden starting of the car; cut out entirely plaintiff's theory of the case; is contradictory to, inconsistent with and repugnant to plaintiff's first and second instructions; it cuts out all there may be of good in defendant's second instruction; it is a peremptory instruction that the entire case must be determined on the single question as to whether or not the car was moving when plaintiff attempted to alight. It sets out no facts to guide the jury as to what would be contributory negligence on the part of plaintiff; it does not even mention contributory negligence, nor base its holdings on any claim that plaintiff's alighting while the car was in motion was a negligent act, but on the bald proposition that if the car was yet moving then there is no evidence of negligence on the part of defendant, it decides the case. It is most manifest error. Instructions which cover the whole case ought to be so framed as to meet the point raised by the evidence and pleadings on both sides. Fitzgerald v. Hayward, 50 Mo. 516; Ellis v. Wagner, 24 Mo.App. 407; Brownfield v. Ins. Co., 26 Mo.App. 390. An instruction which of itself covers the whole case, and authorizes a finding for either party, must not exclude from the consideration of the jury any material issue supported by substantial evidence on either side. Clark v. Hammerle, 27 Mo. 55; Mansur v. Botts, 80 Mo. 651; Sawyer v. Railroad, 37 Mo. 240; Sheedy v. Streeter, 70 Mo. 679; Hoffman v. Parry, 23 Mo.App. 20. An instruction which singles out particular facts, and declares that, as matter of law, if such facts are established, the jury shall give their verdict accordingly, is erroneous. Chappell v. Allen, 38 Mo. 213; Meyer v. Railroad, 45 Mo. 137; Rose v. Spies, 44 Mo. 20; Bank v. Currie, 44 Mo. 91. Instructions ought to be framed to meet the theories of both plaintiffs and defendants. O'Neil v. Capelle, 56 Mo. 296. Instructions must not be inconsistent, contradictory or repugnant, and the giving of such instructions is error, and, where they are inconsistent, it can not be told which the jury followed. Henschlen v. O'Bannon, 56 Mo. 289; Schneer v. Lemp, 17 Mo. 142; Evers v. Shumaker, 57 Mo.App. 454; State v. Herrell, 97 Mo. 105; State v. Nauert, 2 Mo.App. 295; Frank v. Railroad, 57 Mo.App. 181; Redpath v. Lawrence, 42 Mo.App. 101; Jones v. Talbot, 4 Mo. 279; Hickman v. Griffin, 6 Mo. 37; State v. Cable, 117 Mo. 380; Boynton v. Miller, 63 Mo. 207. Whether it was negligence for plaintiff to attempt to get off while the car was still slowly moving was a question for the jury, and as all defendant's witnesses fix it that the car moved only three or four feet beyond the crossing, and plaintiff's fall was at the crossing, the car, if moving at all, must have been very slowly moving, and therefore it was clearly for the jury to determine whether she was guilty of contributory negligence. Wyatt v. Railroad, 62 Mo. 408; S. C., 55 Mo. 485; Straus v. Railroad, 75 Mo. 185; Richmond v. Railroad, 49 Mo.App. 104; Swigert v. Railroad, 75 Mo. 475; Hickman v. Railroad, 91 Mo. 435; Filer v. Railroad, 49 N.Y. 47; Murphy v. Railroad, 43 Mo.App. 342; Leslie v. Railroad, 88 Mo. 50. (4) Plaintiff was trying to get off at the second crossing, at which she had notified defendant she wanted to stop. Defendant's servant, the conductor, knew she wanted to get off and was trying to get off. It was not, then, material whether the car had stopped still or was slowly moving, if the conductor then caused it to suddenly start and throw plaintiff. It was not a material variance even if the jury believed defendant's witnesses, and believed that the car moved three or four feet after plaintiff attempted to alight from it, as their testimony attempts to show. Ridenhour v. Railroad, 102 Mo. 270. That was almost identical with this case, and in both opinions filed therein it is held there was no variance. Leslie v. Railroad, 88 Mo. 50; Olnstead v. Smith, 87 Mo. 602; Wise v. Railroad, 85 Mo. 178; Werner v. Railroad, 81 Mo. 368; Conway v. Reed, 66 Mo. 346.
Geo. W. Easley and Boyle, Priest & Lehmann for respondent.
(1) Plaintiff's case was founded on negligence, and the burden of proving the negligence alleged remains on her throughout the trial. Dowell v. Guthrie, 99 Mo. 653; Murray v. Railroad, 101 Mo. 240. The question of whether plaintiff's act of alighting from the car before it stopped was the cause of the injury was intelligently and fairly submitted to the jury, when they were told that they must find "that but for such attempt on her part to alight from said car, while the same was in motion, she would not have sustained any injury." (2) The objection to the third instruction given for defendant is based on the idea that the allegation that the car was stopped in obedience to plaintiff's signal, for the purpose of permitting her to alight, constituted no part of the plaintiff's alleged cause of action. Yet, that act is so coupled with the allegation as to the starting of the car that "they both unite in constituting one act of negligence." Burger v. Railroad, 112 Mo. 245. If the car had not then stopped, then there was no cause for apprehension that plaintiff would attempt to alight before the car stopped. If the car had stopped to allow plaintiff to alight, it was negligence to start it until she had a reasonable opportunity to alight. If it had not reached the stopping place for passengers to alight, and the injury was caused by plaintiff's alighting prematurely, then there was no negligence on the part of defendant. The whole purpose of the third instruction for defendant was to tell the jury that if they found from the evidence that the car had not stopped to permit passengers to alight, but was still moving, defendant was not guilty of the negligence charged. That very question had to be found by the jury under the plaintiff's first instruction. Certainly, it can not be error for defendant to submit the negative of the very question of which plaintiff submitted the affirmative.
Plaintiff was a passenger on one of defendant's street cars and, in attempting to alight therefrom, fell in the street and received injuries. She said in her petition that the car had stopped for the purpose of allowing her to alight and that while she was in the act of alighting the defendant carelessly and negligently suddenly started said car, throwing her to the ground in a violent manner. That is the only act of negligence charged. The answer was a general denial and a plea of contributory negligence.
The evidence for the plaintiff tended to sustain the allegations of her petition; that for the defendant tended to prove that the car had not stopped,...
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