Pim v. St. Louis Transit Company
| Decision Date | 13 December 1904 |
| Citation | 84 S.W. 155,108 Mo.App. 713 |
| Parties | PIM, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Jas. H. Kinealy Judge.
The appeal is from an order setting aside a verdict in favor of defendant and granting a new trial on motion of plaintiff.
AFFIRMED.
Judgment affirmed.
Boyle Priest & Lehmann, George W. Easley and Edward T. Miller for appellant.
(1) The court erred in sustaining plaintiff's motion for a new trial for supposed error in giving defendant's instructions numbered 8, 9 and 10. The instructions are not erroneous, nor were they erroneously given. Defendant was entitled to the instructions because plaintiff's evidence shows that he was guilty of negligence which directly contributed to the injury complained of. Holding v. St Joseph, 92 Mo.App. 143; Buesching v. Gas Light Co., 73 Mo. 219; Hudson v. Railway, 101 Mo. 13, 14 S.W. 15; Chaney v. Railway, 176 Mo. 598, 75 S.W. 595; Allen v. Transit Co., 81 S.W. 1142. (2) The verdict should not be disturbed because the demurrer to the evidence should have been sustained. Miller v. Railroad, 5 Mo.App. 471; Ashbrook v. Railroad, 18 Mo.App. 290; Carroll v. Rapid Transit Co., 107 Mo. 653, 17 S.W. 889; Berry v. Railway, 124 Mo. 221, 25 S.W. 229; Carrier v. Railway, 175 Mo. 470, 74 S.W. 1002; Nieboer v. Railway, 87 N.W. 626; Brewer v. Transit Co., 79 S.W. 1021.
Scullin & Chopin for respondent.
The case was properly submitted to the jury. Fitzjohn v. Transit Co., 81 S.W. 908; Allen v. Transit Co., 81 S.W. 1142; Clark v. Railroad, 127 Mo. 197, 29 S.W. 1013. Holding that even in cases where passengers were on the running-board, their acts were not negligence per se, but must be submitted to the jury.
Plaintiff boarded an Olive street car, in the western part of the city of St. Louis, to be carried to the intersection of Ninth and Olive streets where he intended to get off. The car was crowded and he stood in the aisle until Tenth street was passed, when he stepped out on the front platform preparatory to alighting when the should reach the Ninth street crossing. He testified that when he stepped out on the front platform there were three or four men standing there, one in front of him and between him and the brake. To avoid knocking or pushing this man against the brake, plaintiff reached out his full length and got hold of the handrail, which the evidence shows projected two and one-half inches beyond the body of the car. While plaintiff was in this position, the car collided with, or rubbed against, a wagon loaded with cement and lime and the wagon or the lumps of lime on the wagon came in contact with plaintiff's hand, badly injuring it. Plaintiff did not see the wagon until after he was injured and had alighted from the car, for the reason his view from the front was obstructed by people standing on the platform. On the part of the defendant, the evidence tends to show that the car did not collide with the wagon at all, that plaintiff's hand came in contact with a piece of lime on top and near the edge of the wagon bed, which had on side boards that projected outwardly. The evidence also tends to show that the wagon had been stopped in the street for the purpose of being unloaded, and the car, which was running at a slow rate of speed, rubbed against the wagon as it passed.
Under the instructions given by the court, the jury found the issues in favor of the defendant Transit Company. Plaintiff in due time filed his motion for new trial, which was sustained by the court. The Transit Company appealed from this ruling.
The answer of the defendant Transit Company was a general denial. The court, however, gave the following instructions for the defendant on contributory negligence:
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